eucrim 2020 / 1 THE EUROPEAN CRIMINAL LAW ASSOCIATIONS‘ FORUM

Focus: New Challenges for Judicial Cooperation in Spain Dossier particulier: De nouveaux défis pour la coopération judiciaire en Espagne Schwerpunktthema: Neue Herausforderungen für die justizielle Zusammenarbeit in Spanien

Guest Editorial Prof. Dr. Mar Jimeno-Bulnes

The European Public Prosecutor’s Office – Protecting the Union’s Financial Interests through Criminal Law Prof. Dr. Mª Ángeles Pérez Marín

Mutual Recognition of Judgements in Criminal Matters Involving Deprivation of Liberty in Spain Prof. Dr. Regina Garcimartín Montero

The Proposal on Electronic Evidence in the European Union Prof. Dr. Ángel Tinoco-Pastrana

Harmonization of Procedural Safeguards of Suspected and Accused Persons Prof. Dr. Félix Valbuena González

Implementation of the Legal Aid Directive in Spain Prof. Dr. Begoña Vidal Fernández

Legal Protection of Minors – Implementation of EU Directives in Spain Prof. Dr. Mª Belén Sánchez Domingo 2020/ 1 ISSUE / ÉDITION / AUSGABE The Associations for European Criminal Law and the Protection of Financial Interests of the EU is a network of academics and practitioners. The aim of this cooperation is to develop a European criminal law which both respects civil liberties and at the same time protects European citizens and the European institutions effectively. Joint seminars, joint research projects and annual meetings of the associations’ presidents are organised to achieve this aim.

Contents

News* Articles

European Union New Challenges for Judicial Cooperation in Spain

Foundations Procedural Criminal Law 36 The European Public Prosecutor’s Office – 2 Fundamental Rights 20 Procedural Safeguards Protecting the Union’s Financial Interests 7 Area of Freedom, Security 22 Data Protection through Criminal Law and Justice 25 Victim Protection Prof. Dr. Mª Ángeles Pérez Marín 10 Schengen 25 Freezing of Assets 41 Mutual Recognition of Judgements in Institutions Cooperation Criminal Matters Involving Deprivation 10 Council 26 European Arrest Warrant of Liberty in Spain 11 European Commission 28 Financial Penalties Prof. Dr. Regina Garcimartín Montero 11 European Court of Justice (ECJ) 29 Law Enforcement Cooperation 11 OLAF 46 The Proposal on Electronic Evidence 13 European Public Prosecutor’s Office in the European Union 13 Europol Prof. Dr. Ángel Tinoco-Pastrana 14 Eurojust 14 European Judicial Network (EJN) 50 Harmonization of Procedural Safeguards 15 Frontex of Suspected and Accused Persons – 15 Agency for Fundamental State of the Matter in Spain Rights (FRA) Prof. Dr. Félix Valbuena González Council of Europe Specific Areas of Crime / 55 Implementation of the Legal Aid Directive Substantive Criminal Law Foundations in Spain 15 Protection of Financial Interests 30 European Court of Human Rights Prof. Dr. Begoña Vidal Fernández 16 Money Laundering 17 Tax Evasion Specific Areas of Crime 59 Legal Protection of Minors – Implementation 19 Organised Crime 30 Corruption of EU Directives in Spain 19 Cybercrime 32 Money Laundering Prof. Dr. Mª Belén Sánchez Domingo 20 Racism and Xenophobia

* The news contain Internet links referring to more detailed information. These links are being embedded into the news text. They can be easily accessed by clicking on the underlined text in the online version of the journal. If an external website features multiple languages, the Internet links generally refer to the English version. For other language versions, please navigate using the external website. Guest Editorial

Dear Readers,

Several anniversaries were recently celebrated in relation to bodies, with the objective of the EU, in general, and to the Area of Freedom, Security and promoting European judicial Justice (ASFJ), in particular: 60 years since the signature of cooperation within the Mem- the Treaty of Rome, 20 years since the enactment of the prin- ber States, e.g., the European ciple of mutual recognition, 10 years since the entry into force Public Prosecutor’s Office of the Treaty of Lisbon. The dynamic European landscape is (EPPO) in 2017 as the most giving rise to an increasing number of actors and instruments recent. Secondly, substantive in judicial cooperation in criminal matters, with undeniable re- European criminal legislation, percussions for the Member States. also articulated on the basis of the principles of mutual This can be seen not only from a legal/judicial perspective but recognition and approxima- also from a social one, since the repercussions basically have tion. Both perspectives are ad- an impact on the daily life of citizens. Call to mind the issu- dressed in this issue, in order ance/execution of a European Arrest Warrant (EAW) or, even to provide a general view of more recently, a European Investigation Order (EIO). Other European judicial cooperation areas where we can observe repercussions are procedural in criminal matters. Mar Jimeno-Bulnes rights in criminal proceedings, e.g., access to a lawyer, and protection of victims of crime. But the European judicial area does not end here. Instead, it continues to evolve unstoppably. This is why new proposals There are currently two principles that convey the legal basis and challenges must be included in the analyses. The frame- for the construction of the European judicial area: the princi- work of e-evidence is undoubtedly the star in the field of crim- ples of “mutual recognition of judgments and judicial deci- inal procedure, with instruments that will again use the two sions” and “the approximation of the laws and regulations of principles of mutual recognition and approximation of legisla- the Member States.” Presented as an alternative to the prevail- tions as shown in the 2018 Commission legislative proposals ing proposal of European harmonisation at the Tampere Coun- on European Production and Preservation Orders. cil (1999), the principle of mutual recognition on its own was soon found to be insufficient to sustain judicial cooperation, The analyses presented here do not tackle the aforementioned especially in the criminal law field. matters only from a European perspective but also include the national one. In this issue, Spain serves as an example of the Almost a decade after enactment of the first mutual recogni- integration of such European instruments into the country’s tion instrument, i.e., the EAW in 2002, the first directive aimed legal system. Spain has greatly contributed to the development at strengthening the procedural rights of suspects/accused per- of the European judicial area, particularly in the criminal law sons in criminal proceedings under the formula of legislative field, due to its own vested interest in the fight -against ter approximation came to light, i.e., Directive 2010/64 on the rorism and organised crime. The nation maintains an intense right to interpretation and translation. Further procedural in- level of activity in applying mutual recognition instruments, struments on judicial cooperation in criminal matters follow- as evidenced by the annual statistics provided for the EU, and ing both principles were later enacted. it is a “key player” in judicial cooperation in criminal matters within the Union. Alongside this specific procedural regulation employing the principles of mutual recognition and approximation, other Prof. Dr. Mar Jimeno-Bulnes legislation of a dual nature was enacted: Firstly, a kind of Full Professor of Procedural Law, Universidad de Burgos organic legislation aimed at creating European institutions/ (Spain)

eucrim 1 / 2020 | 1 News* Actualités / Kurzmeldungen

ests in case generalized deficiencies as regards the rule of law in Member States occur. „„21 January 2020: The deputy disci- pline officer initiates first disciplinary proceedings against Polish judges having participated in the 1,000 Robes March. European Union „„23 January 2020: Poland’s Supreme Court said rulings made by judges ap- Reported by Thomas Wahl (TW) and Cornelia Riehle (CR) pointed under new government rules (af- fecting several hundred judges) could be challenged, resulting in a number of cas- es being postponed. The Supreme Court Foundations ment, the Disciplinary Chamber contin- followed the lines of argument given by ued its activities. the CJEU. Fundamental Rights „„11 January 2020: Thousands of peo- „„23 January 2020: The Polish justice ple, including judges and lawyers from ministry – controlled by the ruling PIS Threat of Rule of Law in Poland – many EU Member States, assemble for a party – reacts and declares that the Su- Recent Developments march through Warsaw, in order to pro- preme Court’s judgment has no legal ef-

spot New actions and regulations ini- test plans by the Polish government and fects. light tiated by the Polish ruling party ruling majority in parliament to disci- „„23 January 2020: The lower house of to push through reforms in the pline the judiciary in Poland. The event the Polish parliament (the Sejm) passes justice system triggered further contro- was tagged as “1,000 Robes March.” a bill introducing further amendments versies between the country and Euro- „„16 January 2020: The European Par- into the Polish judiciary system, despite pean institutions/civil society organisa- liament adopts a resolution on the Art. 7 rejection by the opposition-controlled tions. An overview of the main recent procedures against Poland and Hungary. Senate and criticism by the CoE Ven- events: It, inter alia, “notes with concern that the ice Commission (opinion of 16 January „„19 November 2019: The CJEU rules reports and statements by the Commis- 2020). The amendments (already initi- on the independence and impartiality sion and international bodies, such as ated in December 2019) included, inter of the new Disciplinary Chamber at the the UN, OSCE and the Council of Eu- alia, the prohibition of political activi- Polish Supreme Court, considering that rope, indicate that the situation in both ties for judges in addition to new disci- the referring court may disapply national Poland and Hungary has deteriorated plinary offences and sanctions for judges legislation if the body to which jurisdic- since the triggering of Article 7(1) of and court presidents. Furthermore, the tion was conferred to hear a case where the TEU.” The resolution also criticizes bill declared that any person appointed the EU law may be applied, does not the fact that the current Art. 7 procedure by the President of the Republic is a law- meet the requirements of independence and the hearing conducted have not re- ful judge, and it is prohibited to question and impartiality (see details in eucrim sulted in any significant progress by the his/her legitimacy. Doing so is a disci- 3/2019, pp. 155–156.) two states. MEPs reiterate the need for a „„5 December 2019: The Labour Cham- new EU mechanism on democracy, the ber of the Supreme Court concludes that rule of law and fundamental rights (see * If not stated otherwise, the news in the the Disciplinary Chamber did not fulfil eucrim 1/2019, p. 3). Support is again following sections cover the period 1 January – 31 March 2020. Have also a look at the eucrim the requirements of an independent and given to the proposed regulation on the homepage (https://eucrim.eu) where all news impartial tribunal. Despite this judg- protection of the Union’s financial inter- have been published beforehand.

2 | eucrim 1 / 2020 Foundations plinary offence, potentially punishable to the muzzle law. The statement calls by Poland, because the enacted muzzle with dismissal. Only the Extraordinary on the Polish authorities not to proceed law does not guarantee the defendant Chamber can decide whether a judge is with the law. a fair trial. Although the German court independent and impartial. The Venice „„10 February 2020: 22 retired judges sent a catalogue of questions on the in- Commission stated in this context: “The of the Constitutional Tribunal (includ- dependence of the judiciary in Poland, [amendment bill] seems to be to make it ing eight former presidents and vice- it released the requested person based impossible for any court (…) to question presidents) issue an open letter in which on the “high probability” that extradi- the legitimacy of any court established they note that the Constitutional Tribu- tion would be unlawful at the moment in accordance with the current legisla- nal “has virtually been abolished.” They (for more details on the decision, see the tion.” In the press, the law has been la- regret that the actions of the legislature news in the category “European Arrest belled “gagging bill” and “muzzle law.” and the executive since 2015 and the Warrant”). „„28 January 2020: The Constitutional Constitutional Tribunal leadership since „„24 February 2020: The President of Tribunal suspends the Supreme Court’s 2017, “have led to a dramatic decline in GRECO, Marin Mrčela, addresses a let- resolution of 23 January 2020. The Con- the significance and the prestige of this ter to the Polish Minister of Justice in stitutional Tribunal declared, inter alia, constitutional body, as well as to the in- which he calls on the Polish government that the Supreme Court could not limit ability to perform its constitutional tasks to revise the muzzle law. Mrčela points the adjudication of judges appointed and duties.” The open letter also deals out that the diminishing independence of to office by the President of the Polish with the pending dispute on the Supreme justice may facilitate corruption. He also Republic. Judgments issued by benches Court resolution of 23 January 2020, fully shares the critical opinion of the which included said judges are binding. particularly the participation of two for- Venice Commission of 16 January 2020 „„28 January 2020: The Parliamen- mer MPs in the bench, that compromise on the draft bill of the muzzle law. tary Assembly of the Council of Europe the Constitutional Tribunal’s independ- „„29 February 2020: The Association of (PACE) votes to open a monitoring pro- ence. Polish Judges “Iustitia” and association cedure for Poland over the functioning „„11 February 2020: Following the EP of prosecutors “Lex Super Omnia” pub- of its democratic institutions and the resolution of 16 January 2020, the ple- lish an extensive report detailing repres- rule of law. The resolution declares that nary of the EP again discusses the situa- sions against Polish judges and prosecu- recent reforms “severely damage the tion on the rule-of-law threat in Poland. tors between 2015 and 2019. The report independence of the judiciary and the At the beginning, Commission Vice- not only presents information on the rule of law.” PACE called on the Polish President Věra Jourová informed MEPs investigations and disciplinary proceed- authorities to “revisit the total reform on the current developments, and Justice ings. It also refers to “soft repressions,” package for the judiciary and amend the Commissioner Didier Reynders stressed consisting, among other things, in the relevant legislation and practice in line that the Commission will apply all tools exercise of powers vested in court presi- with Council of Europe recommenda- at its disposal to maintain the rule-of- dents, which bear features of harassment tions.” The Assembly also called on all law values in Poland. MEPs called on or mobbing. The report is to be complet- CoE Member States to ensure that the the Commission to take strong action ed with further cases in the future. courts under their jurisdiction ascertain against Poland. German MEP Katarina „„9 March 2020: Several experts spe- in all relevant criminal and civil cases Barley (S&D) pointed out that Polish cialised in the rule of law address an – including with regard to European Ar- judges are in the unbearable situation of open letter to Commission President rest Warrants – whether fair legal pro- facing disciplinary sanctions if they ap- Ursula von der Leyen. They criticized ceedings in Poland, as defined under ply EU law. She referred to concrete cas- the European Commission for being too Art. 6 ECHR, can be guaranteed for the es of recent repressions against judges. inactive and lenient towards Poland. Re- defendants. Poland is the first EU Mem- „„14 February 2020: The “Muzzle Act” garding the recent changes implemented ber State to which the CoE monitoring (see above) enters into force. Polish by the muzzle law, the experts urge the procedure is being applied. The country President Andrzej Duda signed the Act Commission to take immediate action. shares this position with eight other CoE on 4 February 2020 despite continuing This must include expedited infringe- (but non-EU-) Member States, among protests voiced by the European Com- ment action against the muzzle law, and them Russia, Turkey, and Ukraine. mission, the Council of Europe, and requests for additional interim measures „„30 January 2020: The CCBE publish- civil society organisations. to prevent the muzzle law from being es a statement on Poland in which the „„17 February 2020: In an unprec- enforced by connecting these measures lawyers’ organisation shares the criti- edented decision, the Higher Regional to the already pending infringement ac- cism voiced by independent internation- Court of Karlsruhe suspends the execu- tion with respect to Poland’s new dis- al bodies and organisations in reaction tion of a European Arrest Warrant issued ciplinary regime for judges. The Com-

eucrim 1 / 2020 | 3 NEWS – European Union mission should also tackle the rigging provisions before its final judgment on it requires judges to disclose specific in- of rules as regards the selection of the the substance of the case (C-791/19). formation about their non-professional next president of the Supreme Court, the The final judgment will be delivered at activities. The Polish government now changes at the Constitutional Tribunal, a later date. The judges in Luxembourg has two months to reply to the letter of and the establishment of the National point out that, although the organisation formal notice. Council of the Judiciary. of justice falls within the competence of „„25 May 2020: At a meeting of the „„26 March 2020: The Grand Chamber the Member States, disciplinary regimes LIBE Committee, MEP Juan Fernando of the CJEU declares references for a applicable to national courts are part of López Aguilar (S&D, ES) presents a preliminary ruling of two Polish district the system of the legal remedies in the draft interim report that serves as a ba- courts inadmissible, expressing doubt fields covered by EU law. Therefore, sis for an EP resolution on the way for- as to the compatibility of the new disci- they must comply with the Union’s re- ward as regards the Article 7 procedure plinary regime introduced in Poland via quirements on the independence of the against Poland that was triggered by judicial reforms in 2017 with Art. 19(1) judiciary. The mere prospect of Supreme the European Commission in Decem- subpara. 2 TEU (Joined Cases C-558/18 Court judges or judges of the ordinary ber 2017. The report (1) takes stock of and C-563/18 – Miasto Łowicz and courts being the subject of disciplinary the developments as regards the rule of Prokurator Generalny). The CJEU fol- proceedings that may be referred to a law, democracy, and fundamental rights lows the opinion of AG Tanchev of 24 body whose independence is not guaran- in Poland since 2015; and (2) urges the September 2019 (see eucrim 3/2019, teed is likely to affect judicial independ- Commission and the Council to widen p. 157). The questions referred are gen- ence. By means of this line of argument, the scope of the Article 7(1) TEU pro- eral in nature, because they did not show the CJEU confirms the condition of ur- cedure to include an assessment of clear a connecting factor between the dispute gency, which is required for granting risks of serious breaches of democracy in the main proceedings and a provi- interim relief. The lack of independence and fundamental rights. During the dis- sion of EU law for which interpretation of the disciplinary chamber may cause cussions, most MEPs shared concerns is sought. In essence, the referring Pol- serious and irreparable harm to the EU over the systematic and continuing at- ish judges sought a statement from the legal order. tacks against judicial independence and CJEU that the disciplinary procedures „„29 April 2020: The European Com- democratic institutions in Poland. They are a means of ousting judges if they mission launches a new infringement called on the Council and Commission take decisions that do not suit the legisla- procedure against Poland regarding the to take decisive actions against Poland, tive and executive branches. The CJEU muzzle law that entered into force on including budgetary measures. The clarified that the concept of preliminary 14 February 2020 (see above). The Com- President of the European Association rulings in Art. 267 TEU does not fol- mission concludes in its letter of formal of Judges and a representative of the low this purpose. The Grand Chamber notice that several elements of the new Polish judges association Iustitia report- clearly stated, however, that provisions law infringe Union law. This includes ed on concrete examples of violations of of national law which expose national the established disciplinary regime that judicial independence and disciplinary judges to disciplinary proceedings as a could be used as political control of the proceedings against Polish judges. They result of the fact that they submitted a content of judicial decisions, thus violat- called for a “European Marshall Plan” to reference to the Court for a preliminary ing Arts. 19, 47 CFR, which establish the uphold the EU’s core values in Poland. ruling cannot be permitted. It is a key right to an effective remedy before an The plenary of the EP is to vote on the element of judicial independence that independent and impartial court. In ad- proposed resolution in September 2020. judges not be subjected to disciplinary dition, several elements of the new law (TW) proceedings/measures for having exer- do not comply with the principle of the cised their discretion to bring a matter primacy of EU law. In this context, the Rule-of-Law Developments in Hungary before the CJEU. Commission points out that the law pre- spot Although the executive attacks „„8 April 2020: The CJEU grants the vents Polish courts from fulfilling their light on the independence of the judi- Commission’s application for interim obligation to apply EU law or request ciary in Poland dominate head- measures against the powers of the preliminary rulings from the CJEU and lines in the media, European institutions Disciplinary Chamber of the Supreme from assessing the power to adjudicate also have rule-of-law concerns with re- Court with regard to disciplinary cases cases by other judges. Ultimately, the gard to Hungary. Next to Poland, Hun- concerning judges. The powers are new law is incompatible with the right gary is subject to an Article 7 TEU pro- based on a 2017 judicial reform. The to respect for private life and the right to cedure, which may eventually lead to CJEU requests that Poland suspend the protection of personal data as guar- sanctions against an EU Member State if the application of the relevant national anteed by the CFR and the GDPR, since the Council states a clear risk of a seri-

4 | eucrim 1 / 2020 Foundations ous breach of EU values. The procedure a whole.” The Council is called on to de- proposed bill complies with the values against Hungary was triggered by the termine the existence of a clear risk of enshrined in Article 2 of the Treaty on European Parliament in September Hungary’s serious breach of the values European Union. 2018. Concerns mainly address judicial on which the Union is founded. The EP „„30 March 2020: The Hungarian Par- independence, freedom of expression, also criticizes the modalities of the pro- liament passes the contentious “state of corruption, rights of minorities, and the cedure and shortcomings in the proper emergency extension” bill. The new law situation of migrants and refugees. As in involvement of the EP in the Article 7 (dubbed the “Enabling Act”) gives the the case of Poland, Hungary faces sev- procedure. national conservative Hungarian gov- eral infringement actions before the „„5 March 2020: In other infringement ernment headed by Viktor Orbán the CJEU. The recent developments in brief: proceedings (Case C-66/18), Advocate right to pass special executive decrees „„14 January 2020: Advocate General General Juliane Kokott voices her be- in response to the coronavirus outbreak. Campos Sánchez-Bordona proposes that lief that the 2017 amendments of the It also changes the Hungarian criminal the CJEU declares Hungarian legislation Hungarian law on Higher Education do code by introducing jail terms of up to imposing restrictions on the financing of not comply with EU and WTO law. The five years for people who spread “fake civil organisations from abroad to be in- amendment stipulates that higher educa- news” about the virus or measures compatible with EU law. The Hungarian tion institutions from countries outside against it. Severe penalties were also in- legislation imposes several obligations the European Economic Area would troduced if people breach the quarantine of registering, providing certain pieces only be allowed to continue their activi- ordered by authorities. For details, see of information and publication on civil ties in Hungary if an international trea- also the analysis by Renáta Uitz on Ver- organiations if they receive donations ty existed between Hungary and their fassungsblog. The law was heavily criti- above a certain threshold from abroad. home country. In addition, the new rules cized by the opposition, the Council of The case was brought to the CJEU in an require foreign universities to operate Europe, and human rights organisations. infringement action by the Commission in their country of origin if they want to They mainly disagree with the indefi- (Case C-78/18). The AG argues that the offer higher education in Hungary. The nite term of the expanded state of emer- legislation is contrary to the principle law was seen as a move against Hungar- gency and fear inappropriate restrictions of free movement of capital in that it ian-born US businessman George Soros on the freedom of press and freedom includes provisions amounting to unjus- – an opponent of Hungarian Prime Min- of expression. Another fear is that the tified interference with the fundamental ister Viktor Orbán – because his fund- “Enabling Act” cements the erosion of rights of respect for private life, protec- ed Budapest-based Central European the rule of law in Hungary. In a letter of tion of personal data, and freedom of University was the only active foreign 24 March 2020 to Viktor Orbàn, CoE association as protected by the Charter. higher education institution in Hungary Secretary General Marija Pejčinović Objectives, such as the protection of that did not meet the new requirements. Burić stated, inter alia: “An indefinite public policy and the fight against mon- According to AG Kokott, the new rules and uncontrolled state of emergency ey laundering and terrorist financing, are discriminatory and disproportionate; cannot guarantee that the basic princi- cannot justify the Hungarian legislation. they infringe the freedom of establish- ples of democracy will be observed and „„16 January 2020: The European Par- ment, the Services Directive, the Charter that the emergency measures restricting liament notes in a resolution on the ongo- of Fundamental Rights, and the national fundamental human rights are strictly ing Article 7 procedures against Poland treatment rule of the General Agreement proportionate to the threat which they and Hungary that reports and statements on Trade in Services (GATS). are supposed to counter.” CoE Human by the Commission, the UN, OSCE, and „„24 March 2020: Given the plans of Rights Commissioner Dunja Mijatović the Council of Europe indicate that “the the Hungarian government to expand commented the following on Twitter: situation in both Poland and Hungary “state of danger” measures due to the “#COVID19 bill T/9790 in #Hungary’s has deteriorated since the triggering of COVID-19 pandemic and to rule with Parliament would grant sweeping pow- Article 7(1).” MEPs expressed their dis- executive decrees, the EP’s Civil Liber- ers to the gov to rule by decree w/o a satisfaction on the hearings within the ties Committee (LIBE) issues a reminder clear cut-off date & safeguards. Even in Council; they have not yet resulted in that all Member States have a responsi- an emergency, it is necessary to observe any significant progress. The resolution bility to respect and protect fundamental the Constitution, ensure parliamentary states that “the failure by the Council rights, the rule of law, and democratic & judicial scrutiny & right to informa- to make effective use of Article 7 of the principles, even in difficult times. The tion.” TEU continues to undermine the integri- chair of the committee, Juan Fernando „„15 April 2020: Upon the initiative ty of common European values, mutual López Aguilar (S&D, ES), called on of Transparency International EU, 30 trust, and the credibility of the Union as the Commission to assess whether the MEPs and 50 civil society organisations

eucrim 1 / 2020 | 5 NEWS – European Union send an open letter to the presidents tration of power: “It does not serve the more, EU funding to Hungary should be of the European Commission and the fight againstCovid -19 or its economic stopped, unless rule of law is respected. Council calling on “swift and decisive consequences; instead, it opens the door The Council is called on to move for- actions” against Hungary. The letter to all types of abuses, with both public ward with the Article 7 procedure initi- eyes the new Hungarian emergency law and private assets now at the mercy of ated by the EP in 2018. (TW) of 30 March 2020. Although exceptional an executive that is largely unaccount- times during the Covid-19 pandemic able,” the letter says. The letter calls on Bar Associations’ Resolution “demand exceptional measures and it all European stakeholders to get aware on Rule of Law may be legitimate for governments to of the situation in Hungary and to take On the occasion of the 48th European temporarily use extraordinary powers to collective action. As guardian of the EU Presidents’ Conference on 21 February manage the situation,” the latest actions Treaties, the Commission is called on to 2020 in Vienna, representatives from by the Hungarian government are a “fla- urgently propose sanctions taking into over 50 bar associations adopted a reso- grant attack on the cornerstones of the account the seriousness of violation of lution on the rule of law and the inde- rule of law and the values of the Union,” European rules and values. The EP and pendence of justice. European Institu- the signatories emphasise. The law of Council should adopt these sanctions tions and national authorities are urged 30 March 2020 has a “chilling effect on without delay. National media are ad- to do the following: free speech and anticipate the potential vised to dedicate news segments to the „„Make full use of the tools available in to suffocate those remaining elements of Hungarian situation (daily, if necessary) order to safeguard and restore the inde- the checks and balances system in Hun- and to grant Hungarian citizens free ac- pendence of the judiciary and the admin- gary.” cess to their content as a source of plu- istration of justice in Europe; „„17 April 2020: In a resolution on EU ralistic and independent information. „„Maintain the strict autonomy and inde- coordinated action to combat the COV- „„7 May 2020: In a hearing before the pendence of bar associations and the legal ID-19 pandemic and its consequences, Committee on Legal Affairs (JURI), professions, including the judiciary, espe- the EP voices deep concern over the Commissioner for Justice and Consumer cially as regards disciplinary proceedings. steps taken by Hungary to prolong the Affairs, Didier Reynders, reiterates that In particular, the resolution recom- state of emergency indefinitely, to au- the Commission closely monitors the mends using expedited infringement thorise the government to rule by decree proportionality of emergency measures procedures and filing applications for without a time limit, and to weaken the taken by the EU Member States during interim measures before the CJEU. emergency oversight of the parliament. the coronavirus crisis. This includes the The resolution also includes a call to These measures are deemed “totally Enabling Act in Hungary with its indefi- a “March of European Robes” between incompatible with European values.” nite term of application and its restric- 24 and 26 June 2020 in Brussels in order The Commission is called on to make tions to the freedom of expression/free- to voice, in the heart of Europe, the law- use of all available EU tools and sanc- dom of press. MEPs are concerned over yers’ commitment to the rule of law, the tions to address this serious and persis- the situation in countries like Poland and separation of powers, an independent tent breach; the sanctions could include Hungary, which they fear used the crisis judiciary, and fundamental rights. (TW) budgetary cuts. The Council is called on to put in place measures that weaken de- to resume the ongoing Article 7 proce- mocracy. EU Action Plan on Promotion of Human dures against Hungary. „„14 May 2020: In a plenary debate Rights and Democracy in the World „„20 April 2020: 75 European person- with European Commission Vice-Pres- On 25 March 2020, the European Com- alities, including former European Com- ident Vera Jourová and the Croatian mission and the High Representative mission president Jean-Claude Juncker, Presidency of the EU, several MEPs of the Union for Foreign Affairs and former heads of state and government, reiterate their criticism of the emer- Security Policy (HR/VP) presented and major figures from European civil gency measures taken by the Hungar- their plans for the future EU policy on society publish an open letter calling ian government to fight the COVID-19 strengthening human rights and democ- on the EU to swiftly propose and adopt pandemic. Next to the indefinite state racy in the EU’s external actions. The sanctions against the latest “democratic of emergency, MEPs particularly criti- package presented to the public consists backsliding” by the Hungarian govern- cise the criminalization of ostensible of the following: ment. The signatories voice concern over “fake news,” as it is a measure directed „„Joint Communication EU Action the recent drift of Victor Orban’s gov- against government-critical statements. Plan on Human Rights and Democracy ernment towards autocracy in Hungary. MEPs urge the Commission to promptly 2020–2024; The emergency law of 30 March 2020 is open infringement procedures against „„EU Action Plan on Human Rights criticized as an unprecedented concen- the Hungarian emergency law. Further- and Democracy 2020–2024;

6 | eucrim 1 / 2020 Foundations

„„Joint Proposal for a recommendation areas of EU external action (e.g., trade, entered into force and started a transition of the Council to the European Council environment, development). In opera- period that will end on 31 December on the adoption of a decision identify- tional terms, the Action Plan has five 2020. In essence, the United Kingdom ing the strategic objectives of the Union lines of action that will be implemented will continue to apply Union law during to be pursued through the EU Action on the ground in partner countries: the transition period but will no longer Plan on Human Rights and Democracy „„Protecting and empowering individu- be represented in the European institu- 2020–2024; als; tions. The special position of the United „„Annex to the Joint Proposal for a „„Building resilient, inclusive, and Kingdom in respect of measures in the recommendation of the Council to the democratic societies; area of freedom, security and justice European Council. „„Promoting a global system for human will also continue. The Joint Committee The Joint Communication notes that rights and democracy; may, before 1 July 2020, adopt a single past EU policy achieved significant pro- „„New technologies: harnessing oppor- decision extending the transition period gress in countries and regions where hu- tunities and addressing challenges; for up to one or two years. man rights were under strain; however „„Delivering results by working to- Ongoing police and judicial coopera- challenges persist. Among the critical gether. tion in criminal matters is regulated in trends listed by the Communication: The Action Plan 2020–2024 builds Part III, Title V of the Withdrawal Agree- „„Weakening of the rule of law; on two previous action plans that were ment (Art. 62 et seq.). The framework of „„Increased violence and intimidation adopted in 2012 and 2015 for a four-year the future relationship between the Eu- of human rights defenders (over 2600 re- period each. It also takes into account ropean Union and the United Kingdom ported attacks over the past three years); the 2012 EU strategic framework on hu- is set out in the Political Declaration of „„Widespread impunity for human man rights and democracy. 17 October 2019. From the outset, the rights violations and attacks on the role The accompanying Joint Proposal re- Political Declaration emphasises the of the International Criminal Court. fers to Art. 22 TEU and invites the Eu- importance of data protection. The EU In addition, new technologies and ropean Council to adopt the Action Plan and the UK are committed to ensuring global environmental problems, e.g., cli- – by unanimity – as a strategic interest a high level of personal data protection mate change, pose additional threats to of the EU. In the affirmative, decisions to facilitate data flows and exchanges, human rights. Against this background, on actions implementing the Action Plan which are seen as key to the future rela- a renewed focus on human rights and could then be taken by qualified major- tionship. Part 3 of the Political Declara- democracy is necessary to strengthen ity voting in the Council. This procedure tion outlines the policy objectives of the state and societal resilience. The Joint would make the EU more assertive. future security partnership. The partner- Communication proposes the following: The documents are now being trans- ship will comprise law enforcement and „„Enhancing EU leadership in promot- mitted to the Council and the European judicial cooperation in criminal matters, ing and protecting human rights and de- Parliament. The Council is now called foreign policy, security and defence, and mocracy worldwide; on to adopt the Action Plan and to decide thematic cooperation in areas of com- „„Setting out EU ambitions, identifying on faster and more efficient decision- mon interest. priorities, and focusing on implemen- making in the area of human rights and On 25 February 2020, the General tation in view of changing geopolitics, democracy. (TW) Affairs Council formally authorised digital transition, environmental chal- the Commission to negotiate a new lenges, and climate change; partnership agreement with the United „„Maximising the EU’s role on the Area of Freedom, Security Kingdom. The Council also adopted global stage by expanding the human and Justice negotiating directives that specify the rights toolbox, its key instruments, and Commission’s mandate for the nego- its policies; Brexit – The Way Forward tiations. The directives largely fol- „„Fostering a united and joined-up EU At the end of 31 January 2020, the Unit- low the recommendation presented by by promoting more efficient and coher- ed Kingdom left the European Union. the Commission on 3 February 2020 ent action. The “Agreement on the withdrawal of (COM(2020) 35 final). They mainly The EU Action Plan 2020–2024 de- the United Kingdom of Great Britain build on the aforementioned political fines the priorities of the EU and the and Northern Ireland from the European declaration of October 2019. The EP al- Member States in their relationship with Union and the European Atomic Energy ready endorsed the draft directives in a third countries more concretely. It aims Community” of October 2019 was en- resolution of 12 February 2020. at promoting human rights and democ- dorsed by the Council and the European The negotiating directives reiterate racy consistently and coherently in all Parliament. The Withdrawal Agreement the EU’s wish to set up an ambitious,

eucrim 1 / 2020 | 7 NEWS – European Union wide-ranging, and balanced economic and Europol/Eurojust in accordance The Commission sets out that AI will partnership with the UK. The EU in- with Union standards on third country bring a number of benefits to all of Eu- tends to establish a free trade agreement cooperation; ropean society and economy. Hence, the with the UK to ensure that zero tariffs „„A streamlined extradition scheme EU is set to become a global leader in and quotas apply to trade in goods. This should be built up, which includes the innovation in the data economy and its agreement regulates customs coopera- possibility to waive the double criminal- applications. The Commission, how- tion and regulatory aspects. The mandate ity check for certain offences, to make ever, also points out that the new tech- also contains provisions for future coop- arrangements regarding political offenc- nology entails a lot of potential risks in eration in areas such as digital trade, in- es, to give EU Member States the right relation to fundamental rights and EU tellectual property, public procurement, to not extradite own nationals, and to al- fundamental values, such as non-dis- mobility, transport, and energy. low additional guarantees in particular crimination. Therefore, any trustworthy „„As regards the envisaged security cases; and secure development of AI solutions partnership, the EU reiterates its aim to „„In other areas of cooperation in crim- in the future must respect the values and establish a broad, comprehensive, and inal matters, a future agreement should rights of EU citizens, e.g., the rights to balanced security partnership with the facilitate and supplement the application privacy and data protection. Against this UK. As regards future law enforcement of relevant CoE conventions; arrange- background, the White Paper identifies and judicial cooperation, in particular, the ments may impose time limits, foresee two main building blocks: mandate outlines the following aspects: standard forms, and must take into ac- „„“An ecosystem of excellence” that „„Although the security partnership count the latest technological advance- sets out the policy frameworks needed should provide for close law enforce- ments; to mobilise the necessary economic re- ment and judicial cooperation in rela- „„The envisaged partnership should in- sources, including research and innova- tion to the prevention, investigation, clude commitments to support interna- tion and providing the right incentives detection, and prosecution of criminal tional efforts to prevent and fight against for small and medium-sized enterprises, offences, account must be taken of the money laundering and terrorist financ- in particular; UK’s future status as a non-Schengen ing, which comply with the FATF stand- „„“An ecosystem of trust” that sets out third country, meaning that the UK can- ards or even go beyond these standards the key elements of a future regulatory not enjoy the same rights and benefits as as far as certain aspects are concerned framework for AI in Europe ensuring a Member State; (e.g., beneficial ownership). compliance with EU rules. „„Respect for fundamental rights, in- Ultimately, the mandate foresees that For high-risk cases, e.g., health, po- cluding adequate protection of personal the future partnership should be embed- licing, justice, and transport, the White data, is a necessary condition for the ded in an overall governance framework Paper suggests that AI systems should envisaged cooperation. The EU will au- covering all areas of cooperation. The be transparent, traceable, and guarantee tomatically terminate cooperation if the Commission has a special website that human oversight. Authorities should be UK no longer gives effect to the ECHR; provides regular updates on the Brexit able to test and certify the data involv- „„The security partnership must also negotiations. Negotiations on an agree- ing algorithms used to check cosmetics, provide judicial guarantees for a fair tri- ment for the post-transition phase start- cars, or toys. al, including procedural rights, e.g., ef- ed in early March 2020. The Commis- The Commission wishes to launch a fective access to a lawyer. Cooperation sion published a draft text on the new broad public debate in Europe specifically instruments must lay down appropriate partnership agreement with the UK on on the gathering and use of biometric data grounds for refusal, including a transna- 18 March 2020. (TW) for remote identification purposes, for in- tional ne bis in idem; stance through facial recognition in public „„In the area of data exchange, the se- Commission: White Paper on AI places. The debate should focus on how curity partnership should include PNR spot On 19 February 2020, the Com- their use can be justified as an exception arrangements, an information exchange light mission presented a “White Pa- to the general prohibition of remote bio- (currently foreseen within the Prüm per on Artificial Intelligence: a metric identification. It should also focus framework), and the effective/efficient European approach to excellence and on which common safeguards need to exchange of existing information and in- trust.” The White Paper outlines policy be established in accordance with EU telligence, e.g., on wanted and missing options on how to achieve the dual ob- data protection rules and the Charter of persons/objects; jectives of promoting the uptake of arti- Fundamental Rights. For lower-risk AI „„Within the framework of operational ficial intelligence (AI) and addressing applications, the Commission envisages cooperation, the partnership should pro- the risks associated with certain uses of a voluntary labelling scheme if certain vide for cooperation between the UK this new technology. defined standards are respected.

8 | eucrim 1 / 2020 Foundations

Another challenge is whether current first 100 days in office, she kick-started items), the European Parliament adopted EU and national legislation on liability the debate on human and ethical Artifi- a resolution on 12 February 2020: the is sufficient to compensate persons who cial Intelligence and the use of big data resolution focuses on consumer pro- suffered harm from the application of AI to create wealth for societies and busi- tection as regards AI technology and technology. According to the Commis- nesses. The Commission plans further automated decision making (ADM). It sion, there is currently no need to com- actions as regards the implementation of sets out that an examination of the cur- pletely rewrite liability rules. It would ideas on the digital world. (TW) rent EU legal framework, including the like to garner opinions on how best to consumer law acquis, product safety, ensure that safety continues to meet a EP LIBE: AI in Criminal Law and market surveillance legislation, is high standard and that potential victims On 20 February 2020, MEPs in the LIBE needed to check whether it is able to do not face more difficulties in getting Committee heard experts on the benefits properly respond to AI and ADM and compensation compared to victims of and risks of artificial intelligence in the provide a high level of consumer protec- traditional products and services. The li- criminal law framework. In the hearing tion. MEPs mainly state the following: ability challenges are identified in more “Artificial Intelligence in Criminal Law „„ADM has huge potential to deliver detail in a “report on the safety and li- and Its Use by the Police and Judicial innovative and improved services, but ability implications of Artificial Intelli- Authorities in Criminal Matters,” dis- consumers should “be properly in- gence, the Internet of Things and Robot- cussion focused on facial recognition, formed about how the system functions, ics.” The report accompanies the White risk assessment, and predictive policing about how to reach a human with deci- Paper. (see also the hearing agenda). Panelists sion-making powers, and about how the Together with the launch of the White observed that the use of AI for voice pro- system’s decisions can be checked and Paper, the Commission opened a pub- cessing is already commonplace. In the corrected”; lic consultation. All European citizens, future, AI should be increasingly applied „„ADM systems should use “explain- Member States, and relevant stakehold- in the field of terrorist financing. able and unbiased algorithms”; ers (including civil society, industry, and As regards the use of AI for biometric­ „„Review structures must be set up to academia) are invited to provide their facial identification, participants voiced remedy possible mistakes; feedback on the White Paper and on the concerns over the risks to fundamental „„While automated decision-making EU approach to AI by 31 May 2020. rights. Data quality poses one of the processes can improve the efficiency It should also be noted that the White major challenges in this area. Another and accuracy of services, “humans must Paper is accompanied by the European problem related to the use of AI for always be ultimately responsible for, data strategy that was presented on the facial identification is the so-called al- and able to overrule, decisions that are same day. Both documents are the first gorithmic bias, which may lead to dis- taken in the context of professional ser- pillars of the new digital strategy. The crimination of ethnic groups. Against vices,” e.g., legal professions; new strategy comes in response to the this background, participants discussed „„Supervision or independent oversight digital transformation that affects all how the EU can ensure transparency, by qualified professionals is important European citizens and businesses. Un- explainability, and accountability. The where legitimate public interests are at der the heading “putting people first existing regulatory framework therefore stake; and opening new opportunities for busi- needs to be adjusted, as proposed by the „„Legislation must follow a risk-based ness,” the EU has the following digital European Commission in its White Pa- approach. strategy aims: per on Artificial Intelligence, which was MEPs favour adjusting the EU’s „„Developing technology that works made public on 19 February 2020 (see safety and liability rules to the new tech- for the people; also separate news item). (TW) nology. The Commission is called on to „„Ensuring a fair and competitive digi- take respective legislative action. tal economy; EP: Resolution on Artificial Intelligence The resolution will be transmitted to „„Establishing an open, democratic, and Automated Decision Making the Council and the Commission, so that and sustainable society. EU institutions are dealing with the they can take the EP’s views on AI into These three pillars were further out- question of how the EU should react to account. Digital transformation is one of lined in the political guidelines of Com- the rapid development of artificial intel- the priorities of the Commission under mission President Ursula von der Leyen, ligence (AI). Alongside the Commis- President Ursula von der Leyen. (TW) who emphasises that digital transforma- sion White Paper on AI of 19 February tion must go hand-in-hand with the sec- 2020, which was followed by the LIBE CCBE Position Paper on AI ond main future challenge: the European committee hearing on the use of AI in In March 2020, the Council of Bars & Green Deal. In this context, during her the criminal law field (see separate news Law Societies in Europe (CCBE) pub-

eucrim 1 / 2020 | 9 NEWS – European Union lished a position paper in which it sets justice. Here, several challenges come implementation of the temporary restric- out its considerations on the legal as- to light. Therefore, AI systems should tion on non-essential travel to the EU. pects of artificial intelligence (AI). The be introduced only when there are suffi- The ban pursuant to the Schengen Bor- CCBE voices several concerns over the cient safeguards against any form of bias ders Code was outlined in a Commission use of AI in the following areas that di- or discrimination. All measures of in- Communication of 16 March 2020. The rectly concern the legal profession: creased surveillance should be carefully guidance paper issued now aims to as- „„AI and human rights; balanced against the impact they may sist border guards and visa authorities. „„The use of AI by courts; have on an open and pluralistic society. It gives advice on implementation of the „„The use of AI in criminal justice sys- AI, however, can also support law- temporary restriction at the border, on tems; yers and law firms in coping with the in- facilitating transit arrangements for the „„Liability issues; creasing amount of data generated. The repatriation of EU citizens, and on visa „„The impact of AI on legal practice. use of AI by lawyers is more or less lim- issues. It addresses issues that Mem- The CCBE notes that lawyers should ited to research tools, simplification of ber States raised in the bi-weekly vide- be further involved in future develop- data analytics and, in some jurisdictions, oconferences of Home Affairs Ministers ments of AI, e.g., further studies and predicting possible court decisions. and in technical meetings with Member reflections at the EU and Council of Eu- Nonetheless, AI will change the work States. rope level, because both access to justice of legal professionals and the way how Frontex, Europol, and the European and due process are at stake. legal advice is provided. In this context, Centre for Disease Prevention and Con- Regarding human rights concerns, challenges arise as to the competence trol (ECDC) assisted in the preparation the CCBE paper calls on AI developers of lawyers; they must, for instance, be of the guidance. It also follows up on the to act responsibly. This could be framed able to ask meaningful questions about joint statement of the Members of the by ethics codes or new codifications set- the decisions made by AI, and to point European Council of 26 March 2020, ting out the principles and requirements out the limits of applicability and utility which emphasised the need to step up ef- for the use of AI. In addition, the follow- of AI systems, which cannot remain in forts to ensure that EU citizens stranded ing is recommended: a purely technical domain. This neces- in third countries who wish to go home „„Putting AI systems under independ- sitates appropriate training of lawyers. can do so. (TW) ent and expert scrutiny; In the overall conclusions, the CCBE „„Duly informing persons impacted by emphasises that with the great oppor- the use of an AI system; tunities and benefits offered by AI also „„Ensuring the availability of remedies comes a great responsibility to ensure Institutions for these persons. that AI remains ethical and respects hu- Regarding the use of AI by courts, the man rights. The use of AI does, in cer- Council CCBE underlines that AI tools must be tain aspects, pose significant threats to properly adapted to the justice environ- the quality of our justice systems, the Coronavirus Dominates JHA Council ment given the risk that access to justice protection of fundamental rights and Meeting of March 2020 may be undermined by AI tools. There- the rule of law. The development of AI The first formal JHA Council meet- fore, the following parameters should be tools must take into account the role and ing under the Croatian Presidency on taken into account: interests of all actors in the justice sys- 13 March 2020 was dominated by the „„Possibility for all parties involved to tem. Against this background, one of the coronavirus crisis. Ministers discussed identify the use of AI in a case; main messages of the position paper is civil protection items, in particular: „„Non-delegation of the judge’s deci- that there is a clear need for the CCBE „„Lessons learnt so far in the tackling of sion-making power; and its membership to continue moni- the COVID-19 outbreak; „„Possibility to verify the data input and toring the impact of the use of AI in the „„Possible additional preparedness and reasoning of the AI tool; legal and justice area. (TW) response measures for the EU Civil Pro- „„Possibility to discuss and contest AI tection Mechanism; outcomes; „„Ways to step up information-sharing, „„Compliance with GDPR principles; Schengen making full use of the integrated politi- „„The neutrality and objectivity of AI cal crisis response (IPCR) toolbox; tools used by the judicial system should COVID-19 Travel Restrictions – „„Additional support from Member be guaranteed and verifiable. Guidance by Commission States. The CCBE highlights the sensitivity On 30 March 2020, the European Com- Other topics in relation to the coro- of the use of AI in the area of criminal mission issued practical guidance on navirus included the EU guidelines

10 | eucrim 1 / 2020 Institutions for health screening at borders and the order to reinforce operational police co- effect in their pleas or written observa- working methods of the Council during operation. tions to an order − made by the referring the crisis. Further priorities in the field of crimi- court or by the Court of Justice − that Ministers also dealt with the strategic nal law under the Work Programme in- data must be anonymous in prelimi- guidelines for justice and home affairs, clude plans for an EU Strategy enabling nary ruling proceedings. The same goes which will further implement the com- a more effective fight against child sexu- for orders made by the General Court mon EU objectives set out in the strate- al abuse and a new Action Plan on anti- in cases of appeals. With regard to ap- gic agenda 2019–2024, as adopted by the money laundering. (CR) peals at the General Court, the Practice EU leaders in June 2019. The Council Directions recall that such appeals are Presidency observed that despite broad limited to questions of law and should support for the strategic JHA guidelines, European Court of Justice (ECJ) not, in principle, reveal secret or confi- agreement could not be reached since dential information. Another reminder two Member States are still opposing. Information on Working Arrangements addresses the need to lodge a special Further consultations will have to take during the COVID-19 Pandemic request along with the appeal to allow place. (TW) On 30 March 2020, the Court of Justice it to proceed in cases of Article 58a of published an important message for par- the Protocol on the Statute of the Court ties to the proceedings with regard to its of Justice of the EU. Lastly, the Practice European Commission judicial activities during the coronavi- Directions draw attention to the impor- rus COVID-19 pandemic. According to tance of complying with formal require- Commission Work Programme the information, judicial activity at the ments relating to procedural acts. Published Court of Justice continues, with prior- As regards the oral stage of proce- On 20 January 2020, the Commission ity being given to urgent cases. While dure, the Directions reiterate the cri- published its Work Programme for the procedural time limits for instituting teria governing the organisation of an year 2020. The first annual Work Pro- proceedings and for lodging appeals oral hearing. Specific guidance is given gramme is entitled “A Union that strives continue to run, time limits in ongoing on arrangements to be made before the for more” and sets out the most impor- non-urgent proceedings have been ex- hearing, e.g., regarding language re- tant Commission initiatives in the pro- tended by one month. Time limits that quirements, disability, or reduced mo- gramme’s first year, including commit- are to be fixed by the registry shall also bility. (CR) ments for the first 100 days. The Work be extended by one month. Hearings that Programme is based on the headline am- were scheduled up until 30 April 2020 New Advocate General Appointed bitions presented in the Political Guide- have been adjourned until a later date Jean Richard de la Tour has been ap- lines issued by Commission President can be arranged. pointed Advocate General at the Court von der Leyen. It reflects the main pri- The General Court of the EU has ad- of Justice for the period from 23 March orities for the European Parliament and journed all hearings until 3 April 2020, 2020 to 6 October 2024. Before joining those in the European Council’s Strate- dealing only with particularly urgent the Court, Mr de la Tour served as First gic Agenda for 2019–2024. cases. When possible, however, it is also Advocate General of the Commercial, In the security context, the Work endeavouring to continue dealing with Financial and Economic Chamber of the Programme outlines the Commission’s other cases. The Courts recommend French Court of Cassation. He replaces intention to put forward a new Security consulting the website of the Court of former Advocate General Yves Bot, who Union Strategy. This strategy shall de- Justice of the EU for regular updates. passed away on 9 June 2019. (CR) fine the areas in which the EU can offer (CR) added value to support Member States in their efforts to ensure security. Security New Version of Practice Directions OLAF areas include: Adopted „„Combatting terrorism and organised In February 2020, the Court of Justice OLAF’s Work in Times of Crisis crime; adopted a new version of its Practice On 7 April 2020, OLAF informed the „„Preventing and detecting hybrid Directions, containing information on public that it is still fully operational threats; developments regarding the protection and committed to fighting fraud de- „„Cybersecurity; of personal data and the handling of ap- spite the restrictions set up by the Bel- „„Increasing the resilience of critical peals. gian authorities during the coronavirus infrastructure; Data protection rules, for instance, crisis. The press release provides some „„Strengthening Europol’s mandate in require party representatives to give full statistical data on OLAF’s case work

eucrim 1 / 2020 | 11 NEWS – European Union since 16 March 2020. OLAF has also Task Force comprised of experts spe- EU/Member State budgets would have developed specific rules on conducting cialised in cyber criminality that trawl been €50 million. interviews in times when travelling is the internet with the objective of iden- „„In close cooperation with OLAF, the not recommended. It points out that the tifying and taking down illicit websites Italian Customs Agency seized 12.5 COVID-19 pandemic offers new oppor- offering fake products; tonnes of fluorinated greenhouse gases, tunities for fraudsters to take advantage „„Increased identification of ineffective so-called hydrofluorocarbons (HFCs), of the increased demand for medical medicine products (e.g., pills); on 5–6 February 2020. HFCs replace supplies, personal protection, and hy- „„Collection of intelligence in order to ozone-depleting substances and are of- giene products. In this context, OLAF determine the true origin of face masks, ten used in refrigerated units. Although refers to its successful investigation medical devices, disinfectants, sanitis- they do not deplete the ozone layer, they against fake COVID-19 related products ers, medicines, and test kits, which is have a high global warming potential. (see separate news item). OLAF investi- currently the most pressing challenge in The illicit import of such gases became gators and analysts have quickly adapted dealing effectively with the fraudulent one of OLAF’s operational priorities, in to the extraordinary situation thanks to schemes. line with the top priority on the agenda secure remote access to OLAF’s IT sys- OLAF stressed that close coopera- of the new Commission under Ursula tems and other working tools. (TW) tion with all customs and enforcement von der Leyen, who announced plans authorities in the EU and many other to make Europe the first climate neu- OLAF Investigation into Fake COVID-19 countries as well as with international tral continent by 2050: “The European Related Products organisations, e.g., Europol, Interpol, Green Deal.” After the outbreak of the coronavirus the WCO, and EUIPO, has been estab- „„On 12 February 2020, OLAF re- in Europe, fraudsters started to benefit lished. This proved essential to target ported a successful strike against the from the distress and needs of the popu- shipments and identify the fraudulent smuggling of fake spirits. Shortly before lation. In March 2019, OLAF opened companies. OLAF also warned that Christmas 2019, Dutch customs authori- an investigation into the import of fake small shipments with fake or substand- ties seized 47,000 bottles of counterfeit products to be used against the COV- ard products due to direct sales online rum, an equivalent of 10 containers. ID-19 infection: masks, medical devic- to European customers by companies The final destination of the seized bot- es, disinfectants, sanitisers, and test kits. based in non-EU countries are posing a tles was Spain. OLAF investigators These products proved to be ineffective, major challenge. (TW) uncovered the modus operandi of the non-compliant with EU standards, and rum smugglers and located a suspicious even detrimental to health. Successful OLAF Operations warehouse in the Netherlands. OLAF OLAF has been collecting intelli- Against Smuggling also coordinated the action between the gence and information on this type of In February 2020, OLAF informed the Dutch and Spanish customs authorities. illicit trafficking since the beginning of public about several successful actions The value of the counterfeit rum is esti- the pandemic. It provides customs au- against illicit trade and trafficking: mated to be €2 million. (TW) thorities in the EU Member States and „„With the support of OLAF, Belgian third countries with relevant informa- and Malaysian customs authorities were Humanitarian Crisis in Syria: OLAF tion in real time. The products entered able to seize a record sum of nearly 200 Detects Fraud and Misuse of EU Funds the EU by means of misdeclarations or million smuggled cigarettes. After the On 24 March 2020, OLAF reported that fake certificates, black market sales, and Belgian authorities successfully seized it closed investigations in January 2020 smuggling. around 135 million cigarettes in Ant- that revealed fraud by beneficiaries of On 13 May 2020, OLAF informed of werp, OLAF launched an investigation a rule-of-law project in Syria. The EU the progress made as regards its inquiry against the smugglers and the routeing. had funded a UK-based company and its into the fake COVID-19 products. The Over 62,6 million cigarettes had been partner in the Netherlands and the Unit- interim results include: falsely declared and were waiting for ed Arab Emirates with a total of nearly „„Identification of over 340 companies export from a free trade zone in Malay- € 2 million, in support of a project to deal acting as intermediaries or traders of sia. After having been alerted by OLAF, with possible prosecutions for violations counterfeit or substandard products; the Malaysian authorities seized the con- of international criminal and humanitar- „„Seizure of millions of substandard tainers on 3 February 2020, preventing ian law in Syria. OLAF investigators medical products with fake EU con- the cigarettes from being shipped to the discovered that the claim to support the formity certificates in several Member EU. If the cigarettes had been success- rule of law in Syria was false; in fact, States; fully brought to the markets in the EU, the partners were committing wide- „„Establishment of an OLAF Cyber OLAF estimates that financial loss to the spread violations themselves, including

12 | eucrim 1 / 2020 Institutions submission of false documents, irregular the investigations, OLAF recommended components, ammunition, and explo- invoicing, and profiteering. OLAF rec- the recovery of over €3 million and the sives. ommended that the competent national prosecution of the fraudsters. In addi- To better support the EU Member authorities in the UK, the Netherlands, tion, OLAF recommended flagging the States in preventing and combatting and Belgium recover almost the entire Dutch company in the Commission’s transnational organised crime, Europol’s contractual sum and consider flagging Early Detection and Exclusion System Management Board had recently includ- the partners in the Commission’s Early (EDES), which would exclude the com- ed Mexico to the list of priority partners Detection and Exclusion System data- pany from possible access to European to conclude cooperation agreements base. taxpayers’ money. (TW) with. (CR) On 7 February 2020, OLAF informed the public that it had closed an investiga- EDPS Opinion on Europol Agreement tion into the misuse of EU funds provid- European Public Prosecutor’s Office with New Zealand Published ed to a well-known NGO for emergency On 31 January 2020, the European Data assistance in Syria. The OLAF investi- EPPO: Nomination of College Delayed, Protection Supervisor (EDPS) published gation detected a fraud and corruption Budget Increase its Opinion on the negotiating mandate scheme being carried out by two staff The compilation of the College of the to conclude an international agree- members of the NGO who siphoned tax- European Public Prosecutor’s Office has ment on the exchange of personal data payers’ money away from the humani- been delayed. Due to the COVID-19 between Europol and New Zealand. The tarian crisis in Syria and into their own pandemic, the selection panel could not Agreement shall provide the legal basis pockets and those of their collaborators. meet in March 2020; therefore, the ap- for the transfer of personal data between OLAF also revealed significant short- pointment of recently nominated Euro- Europol and the New Zealand authori- comings in the way in which the NGO pean Prosecutors had to be postponed. ties that are responsible for fighting had administered EU money. OLAF rec- Initially, it was envisaged that the EPPO serious crime and terrorism. Their ac- ommended the recovery of nearly €1,5 start its operational work in November tions and mutual cooperation in prevent- million from the NGO. (TW) 2020. ing these crimes will be supported and On 27 March 2020, the European strengthened. OLAF Unveils Humanitarian Aid Fraud Commission proposed €3.3 million in In its opinion, the EDPS recom- in Mauretania additional funding for the EPPO. The mends, for instance, that the Agreement In January 2020, OLAF concluded in- money is to be used for staff employ- should explicitly lay down a list of crim- vestigations against a Dutch company ment and IT equipment. In total, funding inal offences regulating which personal which revealed a fraud scheme against for the EPPO in 2020 has almost dou- data can and cannot be exchanged. It EU money for development and hu- bled (48%). By means of this increase should also include clear and detailed manitarian aid as well as corruption. A in funding, the Commission has met the rules regarding the information that Dutch company had won a large EU- demands made by the European Chief should be provided to the data subjects. funded contract managed by the Mauri- Prosecutor, Laura Kövesi. The budget Furthermore, it should specifically pro- tanian authorities for the removal of 57 amendments have yet to be approved by vide for periodic review of the need for shipwrecks from a bay in Mauritania. the European Parliament and the Coun- storage of transferred personal data. The OLAF and the Dutch authorities found cil. (TW) European Commission adopted a Rec- that public procurement procedures had ommendation for a Council Decision been breached, subcontract rules violat- authorising the opening of negotiations ed, and two Mauritanian officials bribed. Europol for this agreement on 30 October 2019 According to OLAF Director-Gen- (see also eucrim 3/2019, p. 165). (CR) eral Ville Itälä, the case showed that Stronger Collaboration with Mexico OLAF also ensures the protection of In February 2020, Europol started ne- Operation Against Counterfeit EU money in non-EU countries, that gotiations for a collaboration with the Medicine OLAF fights for EU assistance to be Mexican Ministry of Security and Citi- At the beginning of March, Opera- received by those who need it, and that zen Protection (SSPC) and the Mexican tion ‘Pangea’, a global operation tar- OLAF investigations know no borders. Ministry of Foreign Affairs. The aim is geted against trafficking in counterfeit Detection of the fraud scheme was pos- to sign a Working Agreement to expand medicines, resulted in the arrest of 121 sible through on-the-spot checks, wit- and intensify their collaboration in pre- persons and the dismantling of 31 or- ness interviews, and analyses of large venting and combating serious crime ganised criminal groups. The operation amounts of technical data. As a result of such as the illicit flow of arms, arms also indicated a significant increase in

eucrim 1 / 2020 | 13 NEWS – European Union the production of illicit pharmaceuticals the observatory function of encryption. made on the most effective strategies to and other medical products driven by The report analyses the following: prosecute suspects. The total number of the COVID-19 outbreak. As an example „„The progress of the encryption de- cases increased from 3401 cases in 2014 nearly 34,000 counterfeit surgical masks bate; to 7804 cases in 2019. 21,323 victims of were seized and more than 2000 links „„The current legal landscape in which crime were affected. (CR) related to bogus COVID-19 products to address encryption in criminal inves- were taken down. Operation ‘Pangea’ tigations; Action Against Large-Scale Bitcoin involved 90 countries worldwide, was „„Existing challenges. and Crypto-Currency Fraud coordinated by Interpol, and supported The challenges include the following In January 2020, a Joint Investigation by Europol (CR) issues: Team set up between authorities in Bel- „„Increasing use of encrypted commu- gium and France and supported by Eu- Hit Against Fuel Fraud nication devices by Organised Crime rojust and Europol led to the arrest of At the beginning of February 2020, law Groups (OCG); ten suspects allegedly involved in an Or- enforcement authorities from 23 EU „„Policies and decisions by technology ganised Crime Group (OCG). The group Member States conducted a major op- companies that influence the ability to had been committing international fraud eration against Organised Crime Groups access user data for the purpose of crim- with the sale of bitcoins and other cryp- (OCGs) involved in fuel fraud. The op- inal investigations; to-currencies. eration led to 59 arrests, the seizure of „„The industry’s shift towards devel- Victims were contacted by phone 5.2 million litres of designer fuel worth opments using End-to-End-Encryption and offered large profits on investments approximately €6.8 million, and the sei- (E2EE); in bitcoins. Having made some initial zure of €331,000 and other assets. It was „„The introduction of user-controlled gains, victims felt encouraged to make led by the Hungarian National Tax and encryption allowing users to have ulti- further investments, which the OCG Customs Administration and the Slovak mate control over the encryption and de- then transferred to fake companies. The Financial Administration. Fuel fraud is a cryption of their data; OCG later transferred the profits to bank growing phenomenon used by OCGs to „„Homomorphic encryption allowing accounts in various Asian countries and avoid excise duties. It typically involves for data to be computed without com- Turkey. The investigations unveiled fur- base-oil fraud, also called designer fuel promising the privacy of that data; ther plans to commit fraud, which were fraud, and fuel laundering. (CR) „„Information-hiding technologies, not able to be realised. (CR) e.g., steganography; Staff Exchange „„Quantum computing and 5G. The second staff exchange initiative „„In its conclusions, the report pin- European Judicial Network (EJN) took place between the European De- points the overarching problem of con- fence Agency (EDA), the permanent ducting criminal investigations in con- Compilation on Judicial Cooperation Computer Emergency Response Team temporary society when sources of data under CODVID-19 Available (CERT-EU), the EU Cybersecurity by which to gather evidence are cut off. The EJN is currently collecting and Agency (ENISA), and Europol’s Euro- For the first joint report on encryption, compiling information on the meas- pean Cybercrime Centre (EC3). see eucrim 1/2019, p. 12. (CR) ures taken by the EU Member States in From 17 to 20 February 2020, experts the area of international cooperation in from the different agencies met in Brus- Anti-Drug Trafficking Results 2019 criminal matters under the COVID-19 sels to learn about each other’s priorities In 2019, Eurojust and the EU Member restrictions. The information is accessi- and practices, focusing on strategic de- States tackled illicit drug trafficking ble for the EJN Contact Points under the velopments in cyber defence. In addi- worth over € 2.8 billion. Through action Restricted Area for Contact Points. (CR) tion, they met with industry representa- days, coordination meetings, and other tives and were trained in threat hunting. judicial support, a total of 2686 suspects Updated Publication of European (CR) were able to be arrested or surrendered Criminal Law Texts Available to other Member States. Approximately The compendium “European Union in- €2 billion in criminal assets were frozen struments in the field of criminal law Eurojust and over a thousand weapons, mobile and related texts” (see eucrim 4/2019, phones, laptops, and cars seized. p. 227) is now available for download Second Report on Encryption Published In numbers: Eurojust organised 27 from the EJN website. The publication In February 2020, Eurojust and Europol coordination centres, 430 coordination contains a selection of 106 texts that are published their second joint report on meetings were held, and 800 agreements relevant in the field of European crimi-

14 | eucrim 1 / 2020 Institutions

nal law. Hard copies can be ordered as well as technical equipment will be „„Migration; from the Documentation Centre of the deployed and provided by the Rapid Re- „„Child rights; Council of the European Union. (CR) action and Rapid Reaction Equipment „„Disability; Pools. Consequently, on 12 March 2020, „„Roma; 100 additional border guards from 22 „„Ageing; Frontex EU Member States were deployed at the „„Integration; Greek land borders. Furthermore, Mem- „„Artificial intelligence, etc. Cooperation with DG Migration ber States are providing technical equip- One of FRA’s priorities for the year and Home Affairs ment, including vessels, maritime sur- 2020 will be the national application of On 5 February 2020, Frontex and the veillance aircraft, and Thermal-Vision the EU’s Fundamental Rights Charter. European Commission’s Directorate- Vehicles. Two additional Frontex border Furthermore, the situation of Roma in General for Migration and Home Affairs surveillance planes are in action. Prior different EU Member States will form a signed Terms of Reference (ToR) to en- to this rapid border intervention, Fron- prominent part of FRA’s work. hance their collaboration in the develop- tex already had more than 500 officers To complete its 2020 survey of les- ment of state-of-the-art technology for deployed in Greece, along with 11 ves- bian, gay, trans, bisexual, and intersex the border and coast guard community. sels and various other equipment. (CR) people, FRA will take a closer look at Under the ToR, Frontex has been asked the experiences of intersex people with to identify research activities addressing the aim to further contribute to the Euro- capability gaps in the following areas: Agency for Fundamental Rights (FRA) pean Commission’s list of actions to ad- surveillance, situational awareness, bio­ vance the rights of LGBTI people across metrics, cybersecurity, and information New FRA Website the EU. (CR) availability and exchange. These gaps Since February 2020, FRA has a re-de- are to be translated into requirements for signed website based on an enhanced, research solutions. theme-based structure. Main themes in- Furthermore, Frontex shall contrib- clude hate crime, asylum, and data pro- Specific Areas of Crime / ute to the development of solutions by tection. The new website highlights use- Substantive Criminal Law facilitating their operational testing ful tools such as FRA’s EU Fundamental and validation within the framework of Rights Information System (EFRIS) and Protection of Financial Interests Frontex Joint Operations and in cooper- provides country-specific information. It ation with national authorities. In order is also fully responsive across all mobile Budgetary Control Committee: EU Must to better address national as well as its devices. (CR) Strengthen Fight Against Fraud own operational needs, the Agency shall On 19 February 2020, the EP’s Budget- also monitor the outcomes of research Volume on FRA Published ary Control Committee (CONT) voted and assess their operational relevance. A new book written by 24 human rights on the discharge report prepared by Successful results shall be disseminated experts and published at the end of Janu- MEP Monika Hohlmeier (EPP, DE). By and exploited in order to facilitate their ary 2020 looks at FRA’s impact during a 20 to 4 vote, the committee members market uptake and use. Lastly, with the its 13-year existence. The book, entitled voted in favour of granting discharge results and knowledge obtained from “Human Rights Law and Evidence-Based of the Commission’s accounts for 2018 the Border Security research and inno- Policy – The impact of the EU Funda- (corresponding to 97% of the entire EU vation projects, Frontex will contribute mental Rights Agency,” reflects on FRA’s budget). However, MEPs recommend a to national capability development plan- experience throughout its first decade. number of measures to fight fraud and ning and the generation of the European It also examines the Agency’s position avoid conflicts of interest: Border and Coast Guard capability road- in the policy environment, its role in re- „„The Commission should introduce maps. (CR) searching applied rights, and its response subsidy ceilings, so that EU financial to challenges and constraints. The book is support is distributed more fairly; it Rapid Border Intervention and the available from Routledge. (CR) should be made impossible to receive Greek-Turkish Border subsidies amounting to hundreds of mil- On 2 March 2020, Frontex launched a FRA’s Workplan in 2020 lions of Euros in one MFF-period; rapid border intervention to assist Greece At the beginning of 2020, FRA pub- „„The Commission should create rules in dealing with the large numbers of mi- lished a calendar with scheduled prod- that allow disclosure of the end benefi- grants at its external borders to Turkey. ucts for 2020. The calendar covers is- ciaries of agricultural funds; Border guards and other relevant staff sues such as: „„The EU must establish a complaint

eucrim 1 / 2020 | 15 NEWS – European Union mechanism enabling farmers to inform The EBA report acknowledges that in coordinating, leading, and monitoring the Commission of organised crime or all authorities in the sample have tak- the fight against money laundering and other malpractices (e.g., land-grabbing, en significant steps to strengthen their terrorist financing in more detail. (TW) forced labour, etc.); approach to AML/CFT supervision. „„Future guidelines must tackle con- Supervisory staff is well-trained and flicts of interest with regard to high-pro- committed to fighting financial crime. Commission Roadmap on Future AML/ file politicians; Several authorities have also made the CFT Actions „„The newly created European Public fight against ML/TF one of their key pri- On 12 February 2020, the Commission Prosecutor’s Office is underfinanced and orities and significantly expanded their published the roadmap “towards a new not fully operational in conjunction with AML/CFT supervisory teams in a num- comprehensive approach to prevent- current budget planning; based on an es- ber of cases. The report also observes, ing and combating money laundering timated caseload of 3000 cases per year, however, that most authorities faced and terrorism financing.” The roadmap the EPPO needs at least 76 additional challenges in operationalising the risk- launched a public consultation on pos- posts and €8 million in funding; based approach to AML/CFT. A number sible ways to overhaul current EU AML/ „„MEPs insist on the adoption of the of challenges are common to all peer- CFT legislation. It follows the AML regulation enabling the EU to restrict reviewed authorities and may therefore package presented by the Commission EU money for rule-of-law violations in hold true for other supervisory authori- in July 2019 (see eucrim 2/2018, pp. 94– a Member State (this regulation is cur- ties in all EU Member States. The major 97). In this package, the Commission rently blocked in the Council). challenges are as follows: highlighted a number of deficiencies in The CONT report comes in prepara- „„Translating theoretical knowledge of implementation of the EU anti-money tion for the EP’s discharge decision. The ML/TF risks into supervisory practice laundering framework and the need to discharge is one of the most important and risk-based supervisory strategies; develop a new comprehensive approach rights of the EP. „„Moving away from a focus on tick at the EU level. The debate is fuelled box compliance towards assessing the by recent money laundering scandals, effectiveness of banks’ AML/CFT sys- which, according to the Commission, Money Laundering tems and controls; show the full implementation of the „„Taking sufficiently dissuasive correc- most recent provisions introduced by EBA Report on Performance of AML/ tive measures if banks’ AML/CFT con- the 5th AML Directive. The 2018 Coun- CFT Banking Supervision trol systems are not effective; cil AML/CFT action plan cannot remedy

spot Authorities still face challenges „„Cooperating effectively with domes- the current weaknesses. light in the AML/CFT supervision of tic and international stakeholders to The Commission’s initiative now banks. Measures to correct defi- draw on synergies aims at sounding out the areas in which ciencies in banks’ anti-money launder- „„Positioning AML/CFT in the wider further action is needed at the EU level ing and countering the financing of ter- national and international supervisory in order to achieve a comprehensive and rorism (AML/CFT) systems and controls frameworks. effective framework to prevent -crimi should be more dissuasive. These are These challenges can result in inef- nals from laundering the proceeds of one of the main conclusions of the Euro- fective banking supervision. The EBA’s their illicit activities and to prevent the pean Banking Authority’s (EBA) first peer review will be continued in 2020. financing of terrorism. It prepares- fur report on competent authorities’ ap- The EBA will also continue to provide ther work which might result in concrete proaches to the AML/CFT supervision support and training to all competent EU legislative proposals. of banks. It is part of the EBA’s new du- AML/CFT authorities in order to help The Commission will also respond ties to ensure consistent and effective them tackle the key challenges identi- to demands from the EP to carry out a application of the EU’s AML/CFT law. fied in the present report. The EBA is more fundamental reform of the cur- The report is based on a peer review also working on a review of its AML/ rent EU AML/CFT legal framework, of seven supervisory authorities in five CFT guidelines in order to provide fur- in particular replacing the current AML EU Member States that was carried out ther guidance in areas where weaknesses directives with a directly applicable EU in 2019. It describes how these compe- persist. It has launched a public consul- regulation. In light of the recent Luanda tent authorities apply the risk-based ap- tation on the revised draft guidelines. Leaks, MEPs reiterated their position proach according to international stand- Stakeholders are invited to comment by when they discussed the state of play of ards, Directive (EU) 2015/849 (the 4th 6 July 2020. the EU fight against money laundering AMLD), and the European Supervisory The EBA has also published a in the plenary session on 12 February Authorities’ joint AML/CFT guidelines. factsheet explaining its new functions 2020. (TW)

16 | eucrim 1 / 2020 Specific Areas of Crime / Substantive Criminal Law

Infringement Procedures for Non- mitted by Member States in relation to of the Union’s GDP in 2018. The work- Transposition of 5th AML Directive individual payees. CESOP will enable a ing paper analysed data over a large pe- On 12 February 2020, the Commis- full overview of payments received by riod of time. Apparently, the EU’s trade sion started infringement proceedings payees from payers located in the Mem- self-surplus has become persistent over against eight Member States for not ber States and make the results of spe- time: the EU has had a self-surplus since having transposed the 5th Anti-Money cific analyses of information available 1993, when the single market was estab- Laundering Directive (Directive (EU) to Eurofisc liaison officials. The data in lished. This surplus has increased con- 2018/843; see also eucrim 2/2018, CESOP can also be cross-checked with siderably with the 2004 enlargement of pp. 93–94). The Commission sent letters other European databases. the EU and grown to a total of €2.9 tril- of formal notice to Cyprus, Hungary, The new rules shall apply from 1 Jan- lion over the past twelve years. the Netherlands, Portugal, Romania, uary 2024. They consist of two legal acts The researchers argue that the figure Slovakia, Slovenia, and Spain, because amending existing EU legislation in the should be zero if all transactions were the countries have not notified any im- field of VAT: properly reported and recorded. The plementation measure for the 5th AML „„Council Regulation (EU) 2020/283 of phenomenon cannot be explained by Directive. The Commission stressed 18 February 2020 amending Regulation measurement errors or incidental inac- the importance of the Directive’s rules (EU) No 904/2010 as regards measures curacies only, but rather the large frac- for the EU’s collective interest. EU to strengthen administrative cooperation tion of the EU’s self-surplus seems to Member States were to have transposed in order to combat VAT fraud (O.J. L 62, be related to fraud in value added tax. the Directive by 10 January 2020. The 2.3.2020, 1); It is estimated that EU-wide VAT rev- Member States concerned now have two „„Council Directive (EU) 2020/284 of enue shortfalls could range from €27 to months to deliver a satisfying response; 18 February 2020 amending Directive 35 billion per year in a realistic scenario. otherwise, the Commission will send 2006/112/EC as regards introducing cer- At worst, revenue shortfalls would even them reasoned opinions. (TW) tain requirements for payment service amount to €64 billion. providers (O.J. L 62, 2.3.2020, 7). The researchers also point out that Against the background of this new data quality varies among the Mem- Tax Evasion legislation, on 18 March 2020, the Eu- ber States. The differences were most ropean Commission published a survey pronounced between EU neighbour- New Legislation to Fight VAT Fraud for actors in the payment industry. The ing countries and also between Mem- in Cross-Border E-Commerce survey aims to gather input from the ber States with the more divergent VAT In February 2020, the Council adopted different actors in the payment industry rates. As a result of the study, the follow- new legislative measures to combat regarding the new reporting obligations ing recommendations were made: cross-border VAT fraud caused by the introduced by Directive (EU) 2020/284. „„Institutions in charge should substan- fraudulent behaviour of some business- It gathers their views on implementation tially improve the quality and reliability es in the area of cross-border e-com­ of the legislative package on the trans- of intra-EU data on the balance of pay- merce. The reform will introduce obli- mission and exchange of payment data ment; gations for payment service providers, in order to fight VAT fraud. The results „„An electronic clearing procedure e.g., banks, to keep sufficiently detailed will feed the work of the expert group should be established to make tax fraud records and to report certain cross-bor- established to implement the new VAT and data misreporting very difficult; der payments, thus enabling the loca- regulations. (TW) „„The non-disclosure or non-collection tion of the payer and the payee to be of certain balance-of-payment items more easily identified. It will help fa- Kiel Study: EU’s Trade Self-Surplus (e.g., primary income) should be dealt cilitate controls of the supplies of goods Goes Back to VAT Fraud with urgently. and services by the competent Member In a working paper published in Janu- The study shows that tackling VAT State authorities. ary 2020, the Kiel Institute for the World fraud in the EU should be a top prior- In addition, a new central elec- Economy (IfW) and the ifo Institute in ity, because the large trade self-surplus tronic system of payment information Munich, Germany elucidate that the is fuelling international disputes. (TW) (“CESOP”) will be set up for storage of main reason for the EU’s large trade the payment information and for further surplus with itself is apparently large- Commission Announces New processing of this information by nation- scale VAT fraud. By applying forensic Initiatives to Tackle Tax Evasion al anti-fraud officials. CESOP will store, accounting methods, the researchers ob- The European Commission announced aggregate, and analyse all VAT-relevant served that the EU runs a trade surplus that it will adopt a new action plan to information regarding payments trans- with itself of €307 billion or 1.9 percent fight tax evasion in the second quarter of

eucrim 1 / 2020 | 17 NEWS – European Union

2020. The Commission opened a public British Overseas Territories (Bahamas, overview of recent taxation trends, the consultation for this purpose. The Action Bermudas, and British Virgin Islands) survey outlines how national taxation Plan will not only include key initiatives were removed from the list, as the Coun- systems perform against the five bench- to tackle tax evasion and tax fraud but cil considered these jurisdictions to be in marks. The aim is to help Member States also to simplify the tax system in order line with the international tax standards find the best way to address their own to make compliance easier. It will also in the meantime. This move was criti- specific tax challenges. The survey then launch the External Strategy on tax good cised by tax transparency organisations. reviews Member States’ most recent tax governance 2020. The Council also removed 13 additional reforms and describes some general re- The Commission points out that bil- jurisdictions from the “black list.” form options. Lastly, it presents the ma- lions of euros are lost due to tax eva- Thirteen countries remain on a “grey jor recent actions on tax matters at EU sion every year in the EU (see also the list” (including, e.g., Turkey, Bosnia- level (2014–2020). New elements of the news item on the recent Kiel study on Herzegovina, Morocco, and Australia). present edition of the survey include, in- VAT fraud). On the one hand, efforts by This list (Annex II of the Council conclu- ter alia, discussions on: national tax authorities to tackle tax eva- sions) covers jurisdictions that showed „„Tax competition; sion are increasingly being hampered by cooperation and are set to deliver on „„Design and distribution of the overall new business models, especially those their reform commitment, although they tax mix; based on digital technology. On the have not yet met the international tax „„Sustainability of tax systems in a other hand, companies that do business standards. The Council partly granted changing world; in the single market need a simpler and deadline extensions to these countries. „„Measurement of effective tax rates on more up-to-date tax system. The Council will continue to regu- corporate income. Against this background, the new Ac- larly review and update the list in the The survey provides evidence that tion Plan is to implement Ursula von der coming years, taking into consideration multinational enterprises continue to en- Leyen’s vision that Europe will be “an the evolving deadlines for jurisdictions gage in aggressive tax planning in order economy that works for people.” This to deliver on their commitments and the to decrease their tax burden. In addition, includes fair taxation, so that everybody development of the listing criteria that billions of euros in tax revenue are lost pays their fair share, and the creation of the EU uses to establish the list. (TW) in the EU each year, because individu- a tax environment in which the economy als evade taxes. According to the survey, can grow. The Action Plan is also to take Tax Policies in the European Union − taxation is more than just about raising advantage of the latest developments in 2020 Survey revenue but also plays a central role in technology and digitalisation. (TW) On 31 January 2020, the European Com- shaping a fairer society. Right and fair mission (DG TAXUD) published the tax policies can eventually contribute Council Revises List of Non- fourth edition of its survey on “tax poli- to achieving the goals of the European Cooperative Tax Jurisdictions cies in the EU.” The survey examines Green Deal. On 18 February 2020, the Economic and how Member States’ tax systems per- One of the main conclusions is that Financial Affairs Council revised the form in respect of the following bench- there is scope for Member States’ tax EU list of non-cooperative jurisdictions marks: systems to be fairer and more efficient. for tax purposes. By blacklisting cer- „„Stimulating investment and address- This can be accomplished by various tain countries, the EU aims to promote ing positive and negative externalities; means, including tax incentives, reduced good tax governance at the global level. „„Improving tax administration and tax tax burdens on low-income earners, tax The list includes jurisdictions that either certainty; policies to foster social mobility, and have not engaged in a constructive dia- „„Developing a more employment- the creation of effective tools to fight logue with the EU on tax governance or friendly environment; tax avoidance. The Commission admits, failed to deliver on their commitments to „„Correcting inequalities and promot- however, that there is no “one size does implement reforms complying with the ing social mobility; fit all” rule, but instead tax policies must EU’s criteria on time. „„Fighting tax fraud, evasion, and take account of the national specificities Next to the eight countries already avoidance. and circumstances. on the blacklist (American Samoa, Fiji, These benchmarks in mind, the report The survey on tax policies in the EU Guam, Oman, Samoa, Trinidad and identifies possible improvements to tax is an important tool in the context of the Tobago, US Virgin Islands, Vanuatu), systems in terms of tax design, imple- European Semester and substantiates the the Council added Palau, Panama, Sey- mentation, and compliance. tax policy priorities of the Commission’s chelles, and – as the first British Over- After defining what makes a fair and Annual Sustainable Growth Strategy. seas Territory – Cayman Islands. Other efficient tax system and providing an (TW)

18 | eucrim 1 / 2020 Specific Areas of Crime / Substantive Criminal Law

Evaluation of the Tobacco Taxation slightly over the years, this area remains that investment are being adapted to Directive a substantial challenge. It is estimated elicit speculative investments in stocks On 10 February 2020, the European that the EU potentially loses € 7.5 bil- related to COVID-19. One special form Commission published the results of lion in excise revenues, which calls for involves supply scams attacking busi- its evaluation of Directive 2011/64/ strengthening enforcement policies and nesses providing supplies to prevent EU, which provides for the structure designing tax regimes with enforcement CODIVD-19, e.g., protective masks. and rates of excise duties on manufac- safeguard measures; With regard to counterfeit and substand- tured tobacco (i.e., cigarettes, cigars and „„There has been an increase in the il- ard goods, the report notes a booming cigarillos, fine-cut tobacco for rolling licit manufacturing of cigarettes within market in the pandemic economy, espe- cigarettes, and other smoking tobacco). the EU, requiring a harmonised ap- cially with regard to medical products. The Directive identifies which tobacco proach to monitoring the flow of raw As far as organised property crime products are subject to the harmonised tobacco within and into the EU. is concerned, the report finds criminals’ rules for excise duties and sets minimum Ultimately, the evaluation report calls modi operandi being adapted to already levels of taxation. It aims at ensuring for a more comprehensive and holistic existing schemes involving theft, e.g., the proper functioning of the internal approach, because Directive 2011/64 is the impersonation of relatives or author- market, at a high level of health protec- not much coherent with other EU poli- ities (faking and entering) in ‘Corona’ tion, and at bolstering the fight against cies. This approach should take into ac- situations. tax fraud, tax evasion, and illegal cross- count all aspects of tobacco control, in- Lastly, looking at other criminal border shopping. cluding public health, taxation, the fight activities, the report finds it difficult The evaluation assesses to which ex- against illicit trade, and environmental to assess the short-term impact of the tent implementation of the Directive’s concerns. (TW) COVID-19 crisis on the drug trafficking provisions has contributed to achieving market, but anticipates that supply short- the objectives. In line with the EU’s Bet- ages will translate into increased drug- ter Regulation Guidelines, it was carried Organised Crime related violence between rival suppliers out according to the basic evaluation and distributors. criteria of effectiveness, efficiency, rel- Impact of COVID-19 on Serious The demand for migrant smuggling evance, coherence, and EU added value. and Organised Crime services may increase, with new move- The main findings are as follows: On 27 March 2020, Europol ments being undertaken to circumvent spot „„The current legislation has been light published a report on exploita- the enhanced border control measures. working well in terms of the predictabil- tion of the COVID-19 pandemic Sexual exploitation may increase due to ity and stability of fiscal revenues for by criminals. The report, which aims to the closure of establishments offering le- Member States; support EU Member States’ law en- gal sex work. „„The Directive allows Member States forcement, looks at the impact of meas- The report is based on information enough flexibility to implement their ures taken by governments against the received by the EU Member States on a national fiscal policies for traditional COVID-19 crisis on serious and organ- 24/7 basis. (CR) tobacco products (with €82.3 billion ex- ised crime. The report analyses the im- cise tax revenue in the EU in 2017); pact of the crisis in four key areas: cy- „„New products, such as e-cigarettes or bercrime, fraud, trafficking in counterfeit Cybercrime heated tobacco products, illustrate the and substandard goods, and organised limits of the current legal framework, property crime. Furthermore, it takes a EU’s 5G Cybersecurity Toolbox which is unable to cope with these in- brief look at other criminal activities. On 29 January 2020, the Commis- creasingly developing markets; In the area of cybercrime, the report sion tabled an EU toolbox of mitigat- „„The impact of the tobacco taxation sees a further increase in the number ing measures with the consensus of EU Directive on public health has been of cyberattacks involving various mal- Member States in order to address se- moderate; ware and ransomware packages themed curity risks related to the rollout of 5G, „„Significant differences in taxes (hence around the COVID-19 pandemic. The the fifth generation of mobile networks. prices) between Member States also threat of cyberattacks against critical Ensuring protection of 5G from cyber- limit the objective of achieving public health infrastructure is seen as a major security threats is one of the EU’s top health, particularly where there is a high risk. strategic priorities. The concrete propos- level of cross-border shopping; According to the report, a large num- als in the toolbox follow the European „„Although illicit trade in cigarettes ber of new or adapted fraud and scam Council conclusions, which called for a and fine-cut tobacco have decreased schemes is expected to emerge. It seems concerted approach to the 5G security,

eucrim 1 / 2020 | 19 NEWS – European Union as well as the ensuing Commission Rec- as the most frequent concerns about be- The Commission still has reservations, ommendation for Member States to take coming a victim of cybercrime; however, insisting that cross-border re- concrete actions to assess cybersecurity „„A large majority (77%) are unaware moval orders be directly enforced by risks of 5G networks and to strengthen of the means to report a crime; hosting service providers and voicing risk mitigation measures (both adopted/ „„A large majority (70%) did not report concern over the deployment of automat- issued in March 2019). a cybercrime. ed detection tools. By contrast, MEPs The toolbox lays out a range of se- The survey also informs on the per- stressed that the freedom of expression curity measures, allowing the effective centage which measures are taken by the must also be safeguarded in the Internet; mitigation of risks and ensuring that se- internet users in reaction of cybercrime they are against the obligation to use ex- cure 5G networks are deployed across threats. (TW) ante control measures or “upload filters” Europe. It sets out detailed mitigation (see also the report on the proposal by plans for each of the identified risks Cyber Information and Intelligence LIBE member Daniel Dalton of 9 April and recommends a set of key strategic Sharing Initiative Launched 2019; see also in this context the EP and technical measures to be taken by Europol launched the “Cyber Informa- resolution of 17 April 2019 and eucrim all Member States and/or by the Com- tion and Intelligence Sharing Initiative 1/2019, p. 21). Civil stakeholders identi- mission. Member States should take (CIISI-EU)” together with the European fied additional critical issues and oppose first concrete, measurable steps to im- Central Bank and a group of Europe’s the EU’s approach (see eucrim 1/2019, plement the key measures by 30 April largest and most important financial in- p. 22). In his formal comments of Febru- 2020 (see also the Commission Com- frastructures. The aim is to protect the ary 2019, the European Data Protection munication “Secure 5G deployment in European financial system from cyber- Supervisor encouraged the EU legislator the EU − Implementing the EU tool- attacks. to respect fundamental rights, in par- box,” COM(2020) 50 final). They are The initiative of 27 February 2020 ticular data protection, and to take into also invited to prepare a joint report on brings together central banks, clearing account the principles of quality of law implementation in each Member State houses, stock exchanges, and payment and economic certainty (see details at by 30 June 2020. By October 2020, the system providers as well as Europol and eucrim 1/2019, p. 21). (TW) Commission plans a review of its March the European Union Agency for Cyber- 2019 Recommendation. (TW) security (ENISA) in order to share vital cybersecurity threat information. Key is- Eurobarometer: Europeans Attitudes sues concern: Procedural Criminal Law Towards Cyber Security „„The ability to understand the threat; Alongside the presentation of the EU „„The ability to provide for a collective Procedural Safeguards toolbox on joint security measures for response; 5G networks in January 2020, a special „„Awareness raising concerning pro- CJEU: Prosecutor Can Balance Eurobarometer survey was published tective measures needed to achieve a Defence Rights Against Effective that aimed at identifying EU citizens’ change in behaviour amongst financial Fraud Prosecution (Kolev II) awareness, experience, and perception institutions. (CR) In Case C-612/15 (criminal proceedings of cyber security. The fieldwork was car- against Nikoley Kolev, Stefan Kosta- ried out in October 2019. The main find- dinov, judgment of 5 June 2018, see ings of the survey are as follows: Racism and Xenophobia eucrim 2/2018, pp. 99/101), the CJEU „„The majority of respondents (52%) ruled that Union law, i.e., the obligation feel that they are not able to protect Terrorist Content Online Regulation – to protect the EU’s financial interests themselves sufficiently against cyber- Controversies in Trilogue in accordance with Art. 325(1) TFEU, crime (while the figure was much higher On 21 January 2020, the LIBE Commit- precludes national legislation that es- (71%) in 2017); tee discussed the Commission proposal tablishes a procedure for the termination „„Awareness of cybercrime is rising, for a regulation on preventing the dis- of criminal proceedings, such as that with 52% of respondents stating that semination of terrorist content online provided for in Arts. 368 and 369 of the they are fairly well or very well in- (for the proposal, see eucrim 2/2018, Bulgarian Code of Criminal Procedure, formed about cybercrime (up from 46% 97–98 and the article by G. Robinson, in so far as that legislation is applicable in 2017); eucrim 4/2018, p. 234). Rapporteur Pa- in proceedings initiated with respect to „„Bank card or online banking fraud, tryk Jaki (ECR, PL) outlined that agree- cases of serious fraud or other serious infection of devices with malicious soft- ments with the trilogue partners were illegal activities affecting the financial ware, and identity theft were reported reached on broad parts of the proposal. interests of the European Union in cus-

20 | eucrim 1 / 2020 Procedural Criminal Law toms matters. The CJEU added that it is CJEU: Accused Person Can Waive and the right to be present at the trial. In up to the national court to give full effect Right to Be Present at Trial light of the minimal degree of harmoni- to Art. 325(1) TFEU by disapplying that The CJEU ruled on the conditions un- sation, the Directive therefore cannot be legislation, where necessary, while also der which the non-appearance of ac- understood as a complete and exhaustive ensuring respect for the fundamental cused persons at certain trial hearings instrument. (TW) rights of the persons accused. for reasons either within or beyond their Following this judgment, the referring control is compatible with Union law. German Bar Association Calls for court wished to remedy itself the pro- The concrete case deals with the pro- Further Strengthening of Procedural cedural irregularities that had occurred visions of the Bulgarian Criminal Code Safeguards in EU during the pre-trial phase of the criminal of Procedure on “trials in absentia” and The German Bar Association (Deutscher proceedings against the defendants. The which was brought to the CJEU by the Anwalt Verein − DAV) called on the irregularities concerned their right to be Spetsializiran nakazatelen sad (Special establishment of additional minimum informed about the charges and to ac- Court for Criminal Cases, Bulgaria): guarantees for procedural rights within cess the case material, although the trial the CJEU interpreted the right to be the EU. In its statement No 5/20 of Jan- phase had already been terminated and present at trial guaranteed by Art. 8 of uary 2020, the association assesses the the case referred back to the prosecutor. Directive 2016/343 (for the Directive, state of play of procedural safeguards The appeal court criticised this action on see eucrim 1/2016, p. 13 and the article in the EU on the basis of the six Di- the part of the referring court, because it by S. Cras/A. Erbežnik, eucrim 1/2016, rectives implemented since the 2009 was contradictory to national procedural pp. 25–36). In its judgment of 13 Feb- Roadmap. According to the statement, law. The appeal court requested that the ruary 2020 (Case C-688/18, criminal without effective control mechanisms referring court refer the case back to the proceedings against TX and UW), the to implement these directives, the in- prosecutor. CJEU did not object to the Bulgarian troduction of new instruments will only The referring court again referred rules. lead to limited improvement in proce- the case to the CJEU, seeking clarifica- The CJEU refers to recital 35 of Di- dural rights in the EU. The right to ac- tion on whether Union law precludes rective 2016/343, which states that the cess case materials, enshrined in Art. 7 the interpretation made by the appeal right of suspects and accused persons to of Directive 2012/13, for instance, re- court (Case C-704/18, Kolev II). The be present at the trial is not absolute. In quires further concretisation. Given that referring court argued that the injunc- fact, under certain conditions, suspects the existing directives only cover part tion of the appeal court would make it and accused person should be able to, of the (minimum) harmonisation, the impossible to comply with the opera- expressly or tacitly, but unequivocally, German Bar Association advocates new tive part of the CJEU judgment accord- waive that right. The judges in Lux- initiatives. In this context, the statement ing to which the defendants’ rights in embourg took up the case law of the expressly welcomes the proposals for a Arts. 6 and 7 of Directive 2012/13 must ECtHR, according to which such waiver new Roadmap 2020 by the ECBA (see be implemented. of the right to take part in the hearing Matt, guest editorial, eucrim 1/2017, In its judgment of 12 February 2020, must be established unequivocally and p. 1). Among the measures proposed, the CJEU clarified that the choice on be attended by minimum safeguards the German Bar Association considers how the defendants’ rights are ensured commensurate with its seriousness. Fur- the following three areas important for falls within the procedural autonomy thermore, it must not run counter to any new EU initiatives: of the Member States. In applying the important public interest. „„Minimum standards for pre-trial de- principles of equivalence and effective- In situations where the accused did tention; ness, the CJEU concludes that, as it is not appear in hearings for reasons which „„Conflicts of jurisdiction and ne bis in with the criminal court, the prosecutor is are beyond his control, a waiver must be idem; also able to guarantee the rights of the flanked with guarantees that procedural „„Admissibility and exclusion of evi- defence in the pre-trial phase. Hence, steps, which were taken during his non- dence. there is nothing wrong with the injunc- appearance (e.g., questioning of a wit- The German Bar Association also tion of the higher court (imposed on the ness), can be repeated. This is the case calls for revision of the Framework De- referring court to refer the case back to under Bulgarian law. cision on the European Arrest Warrant, the prosecutor), after termination of the The CJEU stressed, however, that ideally to take into account the CJEU’s trial phase of the criminal proceedings, Directive 2016/343 lays down only case law in this area, correct the exist- for procedural irregularities committed common minimum rules applicable to ing deficits, and introduce effective rem- during the pre-trial phase of those pro- criminal proceedings concerning certain edies against the issuance of a EAW in ceedings to be remedied. (TW) aspects of the presumption of innocence the issuing State. (TW)

eucrim 1 / 2020 | 21 NEWS – European Union

Data Protection came from the Conseil d’État (France) in State security (…) and the activities of the cases La Quadrature du Net, French the State in areas of criminal law,” the AG: Data Retention Should Be Strictly Data Network, Fédération des fournis- AG concludes that this exemption only Limited seurs d’accès à Internet associatifs, Ig- refers to specific activities by the State

spot Advocate General (AG) Manuel wan.net v Premier ministre, Garde des authorities on their own account. In light Campos Sánchez-Bordona ad- Sceaux, Ministre de la Justice, Ministre data retention situations, however, obli- vocates that the CJEU’s rather de l’Intérieur, Ministre des Armées. The gations are imposed on private parties, restrictive case law on the retention of Conseil d’État essentially seeks clari- whose cooperation is required. Even if personal data and access to these data by fication as to whether two obligations this cooperation is required for national law enforcement or intelligence authori- imposed on telecommunication service security interests, these activities are ties should be upheld. Following the providers under French legislation are governed by the Directive, i.e., the pro- judgment in the Joined Cases C-203/15, compatible with EU law: i.e., a) the (real- tection of privacy, which is enforceable Tele2 Sverige, and C-698/15, Tom Wat- time) collection of specific data; b) the against private actors. Accordingly, Di- son and Others (see eucrim 4/2016, retention of location and traffic data in -or rective 2002/58 is applicable in the data p. 164), the CJEU now has to deal with der to facilitate identification of any per- retention scenarios. further references for preliminary rul- son who is civilly and criminally liable. Second, the AG deals with the possi- ings. The AG’s opinion is linked to ref- „„Case C-520/18: Request for a pre- bility under Art. 15 para. 1 of Directive erences initiated by national courts in liminary ruling from the Cour constitu- 2002/58. Under certain conditions, it France, Belgium, and the UK. All seek tionnelle (Belgium) in the case: Ordre allows Member States to adopt legisla- clarification as to whether their national des barreaux francophones et germano- tive measures providing for the reten- legislation on data retention is in line phones, Académie Fiscale ASBL, UA, tion of data if these measures follow with EU law. The courts criticised the Liga voor Mensenrechten ASBL, Ligue objectives of safeguarding national se- CJEU for having established hurdles des Droits de l’Homme ASBL, VZ, WY, curity, defence, public security, and the that are too high; the requirements set XX v Conseil des ministres. The Belgian prevention, investigation, detection, out in Tele2 Sverige/Watson deprive the court wonders whether the Belgian rules and prosecution of criminal offences or EU Member States of an instrument that on the retention of data which follow of unauthorised use of the electronic is absolutely necessary in order to com- multiple objectives (e.g., including the communication system. Limitations to bat terrorism and safeguard national se- investigation, detection and prosecution the privacy rights enshrined in the Di- curity, thus putting corresponding na- of offences other than serious crime and rective (in particular, the guarantee of tional security measures at risk. The the attainment of the defence of the ter- confidentiality of communications and references are as follows: ritory and of public security) are com- related traffic data) must be interpreted „„Case C-623/17: Request for a pre- patible with EU law. In addition, the strictly and with regard to the fundamen- liminary ruling from the Investigatory referring court asks whether it might tal rights enshrined in the CFR. The AG Powers Tribunal (UK) in the case Pri- maintain the effects of the national law proposes upholding the case law of the vacy International v Secretary of State on a temporary basis if a failure with EU judgment Tele2 Sverige /Watson. From for Foreign and Commonwealth Affairs, law is concluded. the Union law perspective, it is dispro- Secretary of State for the Home Depart- Although the AG issued three sepa- portionate and unlawful if national laws ment, Government Communications rate opinions, he clarifies that all cases establish a general and indiscriminate Headquarters, Security Service, Secret before the CJEU raise common prob- retention of all traffic and location data Intelligence Service. The main proceed- lems. In essence, the yardstick for all of all subscribers and registered users. ings at the referring court concern the cases is Directive 2002/58/EC concern- By contrast, a Member State can follow acquisition and use of bulk communica- ing the processing of personal data and the approach of limited and discriminate tions data by the United Kingdom Se- the protection of privacy in the electron- retention flanked with limited access to curity and Intelligence Agencies (SIAs) ic communications sector (Directive on said data. This would entail the follow- via the operators of public electronic privacy and electronic communications) ing aspects: communications networks for the pur- and the fundamental rights enshrined in „„Retention of specific categories of pose of protecting national security, the CFR. data that are absolutely essential for e.g., in the fields of counter-terrorism, First, the AG examines the appli- the effective prevention and control of counter-espionage, and counter-nuclear cability of Directive 2002/58/EC. Al- crime and the safeguarding of national proliferation. though Art. 1 para. 3 of the Directive security; „„Joined Cases C-511/18 and 512/18: excludes from its scope “activities „„Retention for a determinate period both requests for a preliminary ruling concerning public security, defence, adapted to each particular category;

22 | eucrim 1 / 2020 Procedural Criminal Law

„„Data access subject to a prior review AG Campos Sánchez-Bordona, the cas- electronic communications, read in the carried out either by a court or by an in- es at issue may have an impact on other light of Arts. 7, 8, 11, and 52(1) CFR, dependent administrative authority; jurisdictions. This includes the request must be interpreted as meaning that the „„Notification of data subjects (provid- for a preliminary ruling by the Federal categories of data concerned and the ed that ongoing investigations are not Administrative Court of Germany ask- duration of the period for which access jeapordised); ing for verification of the lawfulness of is sought are among the criteria for as- „„Adoption of rules to avoid misuse of, the 2015 German law on data retention sessing the seriousness of the interfer- and unlawful access to, retained data. (see eucrim 3/2019, p. 176). On 21 Janu- ence with fundamental rights that is as- The AG stressed, however, that it is ary 2020, AG Pitruzzella also published sociated with the access by competent not the task of the CJEU to develop a his opinion on interpretation of the Esto- national authorities to the personal data lawful data retention model. This must nian data retention legislation (see sepa- that providers of electronic communica- be done by the legislator. rate news item). (TW) tions services are obliged to retain under Further developing the previous case national legislation. law, the AG suggests that imposing a AG: Conditions of Access to Retained AG Pitruzzella confirmed this view. more extensive and general data reten- Telecommunications Data for Law Examining the lessons learned from tion regime is possible for “exceptional Enforcement the judgments in Tele2 Sverige/Watson situations characterised by an imminent Advocate General Giovanni Pitruzzella (Joined Cases C-203/15 and C-698/15, threat or an extraordinary risk warrant- presented his opinion on the Estonian see eucrim 4/2016, p. 164) and Ministe- ing the official declaration of a state of data retention law, advising on how rio Fiscal (Case C-207/16, see eucrim emergency.” However, such a regime Member States may arrange the conten- 3/2018, pp. 155–157), the AG concludes can also only be lawful for a limited pe- tious retention of personal data for law that both the categories of data con- riod and it must be proportionate. enforcement purposes while keeping in cerned and the duration of the period for As regards the concrete cases at is- line with Union law (opinion of 21 Janu- which access to these data is sought are sue, the AG concludes that Union law ary 2020, Case C-746/18, H.K. v Proku- relevant. He further states that, depend- precludes the established national data ratuur). ing on the seriousness of the interfer- retention legislations in France, Bel- The case is related to criminal pro- ence, it was up to the referring court to gium, and the UK, because they are gen- ceedings against H.K. for several rob- assess whether this access was strictly eral and indiscriminate. There is, how- beries, fraud, and violence against par- necessary to achieve the objective of ever, no preclusion for the specific part ties to court proceedings. The criminal preventing, investigating, detecting, and of French law that permits the real-time court of first instance based H.K.’s con- prosecuting criminal offences. collection of traffic and location data of viction on, inter alia, reports drawn up In addition, the Estonian Supreme individuals, “provided that those activi- using data relating to electronic com- Court posed the question of whether ties are carried out in accordance with munications in accordance with the es- the public prosecutor who granted ac- established procedures for accessing le- tablished Estonian data retention law. cess – also in view of the various duties gitimately retained personal data and are The investigating authority had obtained assigned to it under Estonian law – can subject to the same safeguards.” the data from a telecommunications ser- be considered an “independent” admin- As regards the specific question vice provider in the pre-trial procedure, istrative authority. This question refers posed by the Belgian court, the AG pro- after having been granted authorisation to the CJEU requirement set out in its poses that “a national court may, if its from an assistant public prosecutor. The Tele2 Sverige/Watson judgment in that domestic law so permits, maintain the data provided insight into the location, access to retained data “should, as a gen- effects of legislation such as the Belgian length, partners, etc. of the accused’s eral rule, … be subject to a prior review legislation, on an exceptional and tem- communication within a given period of carried out either by a court or by an in- porary basis, even where that legislation time. H.K. argued that the reports are in- dependent administrative body, and that is incompatible with EU law, if main- admissible evidence and his conviction the decision of that court or body should taining those effects is justified by over- therefore unfounded. be made following a reasoned request by riding considerations relating to threats The Estonian Supreme Court, indeed, those authorities submitted, inter alia, to public security or national security had doubts on the compatibility with EU within the framework of procedures for that cannot be addressed by other means law of the circumstances in which inves- the prevention, detection or prosecution or other alternatives, but only for as long tigating authorities had access to that in- of crime.” The AG maintains that this re- as is strictly necessary to correct the in- formation. The Estonian Supreme Court quirement is not met by the public pros- compatibility with EU law.” raised the question of whether Art. 15(1) ecutor’s office, because it is responsible If the CJEU follows the opinion of of Directive 2002/58/EC on privacy and for directing the pre-trial procedure, on

eucrim 1 / 2020 | 23 NEWS – European Union the one hand, while also being likely to digital-agile economy must be boosted. how consistent application of the GDPR represent the public prosecution in judi- The European Data Strategy aims at cre- can be ensured in this regard. The exam- cial proceedings, on the other. ating a single market for data with the ples are not exhaustive, but the general The AG’s opinion on the Estonian following features: reasoning can be applied to all potential data retention law comes shortly after „„Data flow within the EU and across areas of use. They cover both traditional the opinion of his colleague Manuel sectors, for the benefit of all; video devices and smart video devices. Campos Sánchez-Bordona, who exam- „„Full respect for European rules, in The EDPB highlights that the inten- ined the general lawfulness of data re- particular on privacy and data protection sive use of video devices has massive tention regimes in France, Belgium, and as well as on competition law; implications for data protection. It also the UK. The topic of data retention will „„Fair, practical, and clear rules for ac- affects citizens’ behaviour. In particu- continue to keep the CJEU busy. (TW) cess and use of data. lar, the technologies can limit the pos- In its Communication on a European sibilities of anonymous movement and Council Endorses Start of Negotiations data strategy, the Commission first sets anonymous use of services. While indi- on EU-Japan PNR Deal out what is at stake, what its vision is, viduals might be comfortable with video On 18 February 2020, the Council gave and what the problems are. Future ac- surveillance set up for a certain security green light to the Commission to start tions will be based on four pillars: purpose, for example, guarantees must negotiations with Japan on an agreement „„A cross-sectoral governance frame- be taken to avoid misuse for totally dif- on the transfer and use of passenger work for data access and use; ferent and – for the data subject – un- name record (PNR) data. The Council „„Investments in data and strengthening expected purposes (e.g., marketing endorsed the respective negotiating di- of Europe’s capabilities and infrastruc- purpose, employee performance moni- rectives recommended by the Commis- tures for hosting, processing, and using toring, etc.). The huge amount of video sion in September 2019 (see eucrim data, interoperability; data generated, combined with new tech- 3/2019, p. 175). The Agreement will set „„Empowerment of individuals, invest- nical tools to exploit images, increase out the framework and conditions for ing in skills and in SMEs; the risk of secondary use. Furthermore, the exchange of PNR data, so that they „„Common European data spaces in video surveillance systems in many can be used to prevent and fight terror- strategic sectors and domains of public ways change the way professionals from ism and serious crime. PNR data is per- interest. both the private and public sector inter- sonal information provided by passen- The strategy sets out key actions in act. The growing implementation of in- gers, which is collected and held by air each pillar. For this year, the Commis- telligent video analysis has contributed carriers (e.g., name of passenger, travel sion announced, inter alia, proposals on to high-performance video surveillance. dates, itineraries, seats, baggage, contact a Digital Services Act and a European These analysis techniques can be either details, and means of payment). Democracy Action Plan, a review of more intrusive (e.g., complex biomet- The data transfer to Japan will be in the eIDAS regulation, and measures to ric technologies) or less intrusive (e.g., line with the EU General Data Protec- strengthen cybersecurity by developing simple counting algorithms). The data tion Regulation as the Commission at- a Joint Cyber Unit. protection issues raised in each situa- tested Japan to guarantee an adequate The Commission has invited the pub- tion may differ, as will the legal analysis level of protection of personal data in lic to give feedback on its data strategy. when one or the other of these technolo- January 2019. (TW) The public consultation is open until gies has been used. 31 May 2020. (TW) In addition to privacy issues, there Commission Presents European Data are also risks related to the possible mal- Strategy EDPB: Data Protection Guidelines functioning of these devices and the bi- On 19 February 2020, the Commis- on Video Surveillance ases they may produce. According to the sion unveiled its plans and actions for a At its 17th plenary meeting on 28/29 Jan- guidelines report, research studies found European data strategy. The new Com- uary 2020, the European Data Protection that software used for facial identifica- mission under President Ursula von der Board (EDPB) adopted guidelines on tion, recognition, and analysis performs Leyen set the ambitious goal that the the processing of personal data through differently based on the age, gender, and EU become the leading role model for video devices. The guidelines take into ethnicity of the person, and algorithms a society empowered by data to make account a prior public consultation on are based on different demographics. better decisions – in business and in the topic (see eucrim 2/2019, p. 105). Thus, bias is one of the major problems the public sector. All European citizens These guidelines examine how the of video surveillance; data controllers and businesses should benefit from new GDPR applies in relation to the process- must regularly assess the relevance of technologies and the use of data. The ing of personal data by video devices and such identification methods and su-

24 | eucrim 1 / 2020 Procedural Criminal Law pervise the necessary guarantees. The in this emergency situation; however, Commission strategy for victims’ rights EDPB ultimately stresses that “video these measures must be proportionate (2020–2024) by summer 2020. Accord- surveillance is not by default a necessity and limited to the emergency period. ing to the Commissioners, 75 million when there are other means to achieve Under certain circumstances, the GDPR people fall victim to crime every year the underlying purpose.” allows the processing of personal data in across Europe. Although the EU has ro- The guidelines address the lawfulness the interest of public health without the bust victims’ rights legislation in place, of processing, including the processing individual’s consent. The EDPS state- there are still too many victims whose of special categories of data, the appli- ment also serves as a reminder of the rights are not equally guaranteed when cability of the household exemption, and core principles relating to the processing a crime is committed in an EU coun- the disclosure of footage to third parties. of personal data. try other than their own. The EU must Other analysed items include: For the processing of electronic com- therefore aim to guarantee equal rights, „„Processing of special categories of munication data, such as mobile location regardless of where in the EU a person data; data, the e-Privacy Directive additional- falls victim to a crime. „„Rights of the data subject; ly applies. In this context, public author- The new victims’ rights strategy will: „„Transparency and information obli- ities should first aim to process location „„Empower victims; gations; data in anonymously (i.e., processing „„Strengthen cooperation and coordina- „„Storage periods and erasure obliga- data should be aggregated in a way that tion between national authorities; tions; individuals cannot be re-identified). This „„Improve protection and support to „„Technical and organisational meas- could enable the generation of reports on victims; ures; the concentration of mobile devices at a „„Facilitate access to compensation. „„Data protection impact assessment. certain location (“cartography”). If it is Support and protection of victims is The EDPB – an assembly of the not possible to only process anonymous currently ensured by the EU through the EEA data protection authorities and the data, Art. 15 of the ePrivacy Directive Victims’ Rights Directive (2012/29/EU), European Data Protection Supervisor – enables the Member States to introduce sector-specific regulations (e.g., protec- works on consistent application of data legislative measures pursuing national tion of victims of human trafficking, protection rules throughout the Europe- security and public security. Such emer- child sexual abuse/child pornography, an Union and promotes cooperation be- gency legislation is possible under the and terrorism), and a legal scheme that tween the EU’s data protection authori- condition that it constitutes a necessary, facilitates access to compensation in sit- ties. (TW) appropriate, and proportionate measure uations where the crime was committed within a democratic society. If these in an EU country other than the victim’s Corona Outbreak and Data Protection measures are introduced, a Member country of residence. (TW) The outbreak of COVID-19 and subse- State is obliged to put in place adequate quent initiatives and policy measures safeguards, such as granting individuals have triggered many crucial privacy and using electronic communication servic- Freezing of Assets data protection law issues. The VUB es the right to judicial remedy. The pro- Law, Science and Technology Society portionality principle also applies. The CJEU: Confiscation of Illegal Assets Research Group has provided a collec- least intrusive solutions should always via Civil Proceedings Possible tion of statements and materials on be preferred, taking into account the spe- EU law does not preclude national leg- tracking initiatives and on European/in- cific purpose to be achieved. (TW) islation, which provides that a court ternational resources on the pandemic at may order the confiscation of illegally its website. obtained assets following proceedings In a statement of 19 March 2020, Victim Protection that were not subject either to a find- the European Data Protection Board ing of a criminal offence or, a fortiori, (EDPB) provides an answer to several Commission Announces New Victims’ the conviction of the persons accused of questions on data protection in the con- Rights Strategy committing such an offence. The CJEU text of the fight against the COVID-19 On the occasion of the European Day for drew this conclusion in Case C-234/18 pandemic. The statement focuses on the Victims of Crime on 22 February 2020 (ARGO IN 2001), following a reference processing of personal data by both pub- and following the xenophobic/racist at- for preliminary ruling by the Sofia City lic health authorities and employers. The tacks in Hanau/Germany on 19 February Court, Bulgaria. The Bulgarian court is EDPB refers to EU data protection rules 2020, Commission Vice-President Věra conducting civil proceedings against BP and stresses that the GDPR does not, in Jourová and Commissioner for Jus- and others for the confiscation of illegal- general, hinder restrictions of freedom tice Didier Reynders announced a new ly obtained assets. BP, the chair of the

eucrim 1 / 2020 | 25 NEWS – European Union supervisory board of a Bulgarian bank, Cooperation (in 2012/2013); however, the maximum allegedly incited others to misappropri- term of imprisonment was changed to ate funds belonging to that bank in the three years in 2015. The question now sum of approximately €105 million. The European Arrest Warrant was which point in time is decisive in criminal proceedings against him have order to determine the “minimum maxi- not been finally concluded and are still CJEU Ruling in Spanish Rapper Case: mum threshold” in Art. 2(2) FD EAW. pending. Independent of these criminal Legislation at Time of Offence Is Art. 2(2) FD EAW does away with the proceedings, the Bulgarian Commis- Decisive verification of double criminality, inter sion responsible for combatting corrup- On 3 March 2020, the Grand Chamber alia for “terrorism,” under the condition tion and for confiscating assets brought of the CJEU decided the legal question that the offence is punishable in the is- civil proceedings before said civil court referred to by the Court of Appeal of suing State for a maximum period of at in Sofia. The Bulgarian Commission re- Ghent, Belgium in the extradition case least three years. For the background of quested ordering the confiscation of as- against rapper Valtònyc (Case C-717/18). the case and the opinion of the Advocate sets from BP and members of his family, Spain had issued a European Arrest General, see eucrim 4/2019, pp. 245– because it found that they had acquired Warrant against Josep Miquel Arenas 246. assets of considerable value whose ori- (who performs as rapper under the name Contrary to the opinions of the Bel- gin could not be established. The Bul- Valtònyc) for the purpose of executing gian and Spanish governments and the garian court asked the CJEU whether a 2017 sentence of imprisonment. He Belgian Procureur-generaal, the CJEU such legislation is in line with Council was, inter alia, sentenced to the maxi- ruled that the executing authority must Framework Decision 2005/212/JHA of mum prison sentence of two years for take into account the law of the issuing 24 February 2005 on Confiscation of “glorification of terrorism and the hu- State in the version applicable to the Crime-Related Proceeds, Instrumentali- miliation of the victims of terrorism.” facts giving rise to the case in which the ties and Property, i.e., whether civil con- The sentence followed the law in force EAW was issued. The purpose of the fiscation procedures can be concluded at the time the offences were committed FD EAW, which is to facilitate and ac- without first establishing the commis- sion of a criminal offence. In its judgment of 19 March 2020, the EPRS Study on European Arrest Warrant CJEU confirmed the Bulgarian legisla- tion. The CJEU pointed out the purpose In February 2020, the European Parliamentary Research Service (EPRS) published an in- of the Framework Decision. It aims at depth analysis on implementation of the European Arrest Warrant (authors: Wouter van Ballegooij and Ivana Kiendl Krišto). The analysis is designed to support an own-initiative obliging Member States to establish implementation report by the EP’s LIBE committee (rapporteur: Javier Zarzalejos, EPP, common minimum rules for the confis- Spain) and to feed discussions on possible revision of the 2002 Framework Decision on cation of crime-related instrumentalities the European Arrest Warrant that may be triggered in 2020. The February report will be and proceeds in order to facilitate the followed by a study (planned for April 2020) that will present conclusions on implemen- mutual recognition of judicial confisca- tation of the framework decision and tentative recommendations on how to address any tion decisions adopted in criminal pro- shortcomings identified. ceedings. This does not preclude Mem- The analysis observes that the FD EAW is generally recognised as a successful instru- ment; however, its application has triggered a number of problems: ber States from providing other means of confiscation, such as the ones in the „„Definition of “issuing judicial authorities” and their independence from government; case at issue, which are civil in nature. „„The proportionality of EAWs issued for “minor offences” and before the case was “trial ready”; Coexistence with a confiscation regime „„Verification of double criminality, its compatibility with the principle of mutual recog- under criminal law is possible. nition, and the need for further approximation of laws; The CJEU concludes that EU law „„Interplay of the FD EAW with the FD on the transfer of prisoners in the cases of does not preclude national legislation surrender of nationals/residents; which provides that a court may order „„Application of the “trials in absentia” exception; the confiscation of illegally obtained „„The role of the executing authority in safeguarding the fundamental rights of the assets following proceedings which are requested person. not subject either to a finding of a crimi- The analysis also deals with the difficulties experienced by requested persons in ef- nal offence or, a fortiori, the conviction fectively exercising their procedural rights in accordance with the EU directives setting of the persons accused of committing out the approximation of criminal procedure in EAW cases. (TW) such an offence. (TW)

26 | eucrim 1 / 2020 Cooperation celerate judicial cooperation, as well as EU Member States, mutual trust among stances on the grounds that the right to the context of the provision justify this Member States, and interpretation of a fair trial will not be respected in the interpretation. The CJEU further argues the 2002 Framework Decision as such. issuing EU Member State (see details in that making reference to the version of MEPs pointed out that, after 18 years of eucrim 2/2018, pp. 104–105). the law at the time of the issuance of the existence, the FD EAW still triggers a hhDecision of the HRC EAW means that the executing author- number of CJEU judgments interpreting The court in Karlsruhe extensively ity has to look into possible amendments its provisions in a more or less funda- dealt with the recent reforms in Poland, of the laws in the issuing State, which mental way. They are not eager to revise which further restrict the independence would run counter to the principle of le- the FD, however, because this would of judges by introducing, inter alia, gal certainty. open “Pandora’s box” and the achieve- new rules on the disciplinary regime to Lastly, the CJEU clarifies the rela- ments would (again) be at stake. the Polish judiciary. This “muzzle law” tionship between Art. 2(2) and Art. 2(4) Notwithstanding, the representa- came into force on 14 February 2020 FD EAW: the fact that the offence at is- tive from the European Commission (for details, consult the recent news on sue cannot give rise to surrender without announced readiness to revise the FD the rule-of-law situation in Poland in the verification of the double criminality of EAW. Problems are mainly seen in the category “Foundations > Fundamental the act, pursuant to Art. 2(2), does not implementation of the FD and its incor- Rights”). The court also took into ac- necessarily mean that execution of the rect application. count recent developments against the EAW has to be refused. The executing The FD EAW will be at the centre of Polish reform at the EU level. It paid judicial authority is responsible for ex- further policy discussions in 2020. The particular attention to the CJEU’s judg- amining the double criminality criterion EPRS will present another study on the ment of 19 November 2019, in which of the act set out in Art. 2(4) in the light EAW in April 2020. This will serve as doubts were raised as to the independ- of the offence at issue. the basis for drafting an own-initiative ence and impartiality of the new Disci- The judgment means that the Bel- report by the EP on the EAW imple- plinary Chamber at the Polish Supreme gian extradition court must now verify mentation. The Commission envisages Court (see details in eucrim 3/2019, whether the facts giving rise to the EAW presenting an in-depth assessment on pp. 155–156). It also took into consid- against the rap artist would also be pun- the EAW by summer. And the upcoming eration other (pending) infringement ishable under Belgian law. However, the German Council Presidency will put the actions against the reform that had been first instance court already denied the issue of revision of the EAW on its JHA referred to the CJEU by the European double criminality of the act at issue, agenda. (TW) Commission. so it is likely that Valtònyc will not be Since the defendant put forward ma- surrendered to Spain. Another solution Fair Trial Concerns: German Court terial supporting the assertion that there would be that Spain withdraws the EAW Suspends Execution of Polish EAW are systemic deficiencies in the rule of because it was apparently issued on false spot With its decision of 17 February law in Poland, the HRC examined the legal assumptions. (TW) light 2020, the Higher Regional real risk of breach of the fundamental Court (HRC) of Karlsruhe, Ger- right to a fair trial – the second step MEPs: Revision of EAW Would Open many set aside an extradition arrest war- required by the CJEU in the Celmer Pandora’s Box rant against a Polish national who was to judgment. As this real risk could not On 20 February 2020, MEPs discussed be surrendered to Poland via an EAW be excluded, the HRC sent a catalogue policy options for the European Arrest issued for the purpose of criminal pros- with comprehensive questions to the Warrant in a meeting of the LIBE com- ecution. The court argued that a fair trial Polish Ministry of Justice asking for mittee. Legal experts reported on imple- for the requested person is not guaran- further clarifications on the new muz- mentation of the Framework Decision on teed in Poland following recent reforms zle law and its impact on the concrete the European Arrest Warrant (FD EAW). that had an impact on the disciplinary criminal proceedings, including pos- Politicians could also draw on a study by regime of the judiciary in Poland. sible disciplinary measures against the the European Parliamentary Research hhBackground deciding judges. At the same time, the Service (EPRS) that provided a first in- The court in Karlsruhe refers to the HRC set aside the extradition arrest depth analysis on implementation of the CJEU’s judgment of 25 July 2018 in warrant in Germany – following the EU’s surrender scheme (see separate Celmer (Case C-216/18 PPU – also current developments in Poland in re- news item). The EAW instrument was dubbed “LM”), in which the judges in spect of the judicial reform – because considered a generally successful tool; Luxembourg concluded that the execut- a “high probability” exists that extradi- however, challenges remain. These in- ing authority can refrain from giving tion would be inadmissible (at least) at volve the detention conditions in some effect to an EAW under certain circum- the moment.

eucrim 1 / 2020 | 27 NEWS – European Union hhPut in Focus the rule of law are therefore not to be the most recent CJEU judgments taken The HRC of Karlsruhe rendered a considered as internal issues for Poland. on this issue in 2019 (see also eucrim landmark decision. It is the first time The Assembly calls upon all Council of 3/2019, p. 178, and eucrim 4/2019, that a court in an EU Member State de- Europe member states to ensure that the pp. 242, 244–245), Eurojust’s update nied extradition because of possible fair courts under their jurisdiction ascertain now also offers information on the UK trial infringements in another EU coun- in all relevant criminal cases – includ- and Norway as well as information on try. Until now, courts in Europe consist- ing with regard to European Arrest War- judicial protection and the possibility to ently refused to accept non-extradition, rants – as well as in relevant civil cases, contest a prosecutor’s decision to issue following the judicial reforms in Poland whether fair legal proceedings in Po- an EAW. (CR) that started in 2015, because the hurdles land, as meant by Art. 6 of the European set by the CJEU in Celmer could not be Convention for Human Rights, can be overcome. Nearly all cases failed be- guaranteed for the defendants” (No. 11 Financial Penalties cause the courts were not convinced that of the adopted resolution of 28 January the requested person would run a real risk 2020). CJEU Rules on Union-wide of fair trial infringement in Poland. The The reference number of the HRC’s Enforcement of Fines against Legal HRC of Karlsruhe justifies its change in decision (Beschluss) of 17 February 2020 Persons view because the recent muzzle law has is: Ausl 301 AR 156/19. See also the spot After its judgment on the inter- shown that the person concerned could press release by the Oberlandesgericht­ light pretation of the Framework De- run this real risk. It is no longer an ab- Karlsruhe and the summary by Anna cision on the application of the stract danger, because the new discipli- Oehmichen in “beck-aktuell” (both in principle of mutual recognition to finan- nary regime has repercussions on the German). A first analysis in English has cial penalties (FD 2005/214/JHA) of entire judiciary, including on judges at been provided by Maximilian Steinbeis 5 December 2019 (see eucrim 4/2019, the competent criminal courts of first in- on Verfassungsblog.de. (TW) pp. 246–247), the CJEU delivered an- stance. However, the HRC of Karlsruhe other important judgment on the cross- stresses that the extradition procedure in Updated Overview on Position of Public border enforcement of fines on 4 March Germany is not yet finished; a final de- Prosecutors in Relation to the EAW 2020 (Case C-183/18, Bank BGŻ BNP cision on the case rests on the reply to On 30 March 2020, Eurojust published Paribas). The reference for preliminary the catalogue of questions by the Polish a new version of its country-by-coun- ruling was brought up by a Polish court. authorities. try overview on the position of public In the case at issue, the District Court of The decision of the HRC also dem- prosecutors in relation to the European Gdańsk, Poland, has to deal with a re- onstrates that the judiciary in other EU Arrest Warrant (EAW) (for the previ- quest from the central judicial recovery Member States cannot assess fair trial ous version, see eucrim 2/2019, p. 110). office of the Netherlands (CJIB) to rec- issues at the level of the European Ar- The overview was compiled following ognise and enforce a fine of €36 imposed rest Warrant without looking at other the CJEU’s judgment of May 2019, on the Bank BGŽ BNP Paribas Gdańsk, developments in judicial reform, in par- in which it declared that the German because the driver of a vehicle belong- ticular concrete CJEU case law follow- public prosecutors’ offices do not fall ing to the bank had exceeded the author- ing infringement proceedings against within the concept of “issuing judicial ised speed limit in Utrecht (Nether- the reform. The question is also whether authority” in the sense of Art. 6(1) FD lands). the CJEU’s case law on the EAW, on the EAW due to lack of independence (cf. hhLegal Problems one hand, and on the judicial reform in eucrim 1/2019, pp. 31–33). In another The referring court first observed that Poland, on the other, is consistent. judgment of May 2019 as regards the the Bank BGŽ BNP Paribas Gdańsk has In the present context, the following Lithuanian Prosecutor General, the no legal personality under Polish law statement of the Parliamentary Assem- CJEU set out requirements of objectiv- and does not have the capacity to act bly of the Council of Europe is worth ity and independence and the need for as a party in judicial proceedings. It is reading: effective judicial protection that must a separate entity of the parent company “The Assembly notes that the con- be afforded to the requested persons Bank BGŽ BNP Paribas S.A., which has cerns about the independence of the if an EAW is issued by a public pros- its seat in Warsaw. By contrast, Dutch Polish judiciary and justice system, as ecutor’s office. The judgments raised law covers organisational units like the well as Poland’s adherence to the rule of uncertainties amongst practitioners bank in Gdańsk under the concept of law, directly affect Europe as a whole. regarding the legal position of public “legal persons” who can be liable for The questions about the independence prosecutors in the Member States. misdemeanours. of the justice system and the respect for Alongside an updated summary of Second, the Polish court argues that

28 | eucrim 1 / 2020 Cooperation there is no legal basis for recognising and hhDecision as to the Second Question Law Enforcement Cooperation enforcing the imposed fine, because the As regards the conflict between the provisions of the Polish Code of Crimi- national law and the obligations under EDPB: CoE E-Evidence Legislation nal Procedure transposing FD 2005/214 Art. 9 para. 3 FD 2005/214, the CJEU Must Ensure Strong Data Protection do not include legal persons. Although first reiterates its established case law on Safeguards Art. 9 para. 3 of the FD imposes the ob- the effects of Union acts and the princi- In view of the negotiations on a Second ligation to enforce financial penalties ple of uniform interpretation. Referring Additional Protocol to the CoE Cyber- against legal persons, even if the execut- to the Poplawski judgment (see eucrim crime Convention (Budapest Conven- ing State does not recognise the princi- 2/2019, pp. 110–111), the CJEU reca- tion), which will include a framework ple of criminal liability of legal persons, pitulates that, although the framework for law enforcement authorities to di- in the view of the court, an interpretation decisions cannot have direct effect, their rectly receive data from service provid- of the Polish law in conformity with the binding character nevertheless places ers, the European Data Protection Board provision of Art. 9 para. 3 FD would be an obligation on national authorities addressed a letter to the responsible CoE contra legem. to interpret national law in conform- committee calling for the integration of hhQuestions Referred ity with EU law as from the date of ex- strong data protection safeguards. The As a consequence, the District Court piry of the period for the transposition EDPB points out that the contents of the of Gdańsk asked the CJEU the following of these framework decisions. While additional protocol deal with sensitive questions: the premise has its limits, e.g., no in- issues of data protection; it will involve „„Must the concept of “legal person” terpretation contra legem, the referring the collection of personal data, including in the FD 2005/214 be interpreted in court must exhaust all possibilities to not only subscriber but also traffic data, accordance with the law of the issuing consider an interpretation of the Polish on the basis of orders from another juris- State or the executing State or as an au- law in conformity with Union law (here, diction. The new legal framework must tonomous concept of EU law, and which the obligation under Art. 9 para. 3 FD be consistent with the CoE data protec- consequences does this answer have for 2005/214). Contrary to the opinion of tion convention (CETS no. 108) and the concrete liability of the banking en- the referring court, the CJEU believes should also be compliant with the EU’s tity in Gdańsk? that the concepts of the Polish Code of primary and secondary law. The EDPB „„Must the financial penalty imposed Criminal Procedure can be interpreted as also called on the CoE committee to en- on a legal person in the Netherlands be referring to the entity on which a final sure transparency of the ongoing discus- enforced in a Member State that has no financial penalty has been imposed, re- sions. The concerns of the data protec- national provisions on the execution of gardless of whether this entity is a legal tion authorities must be taken seriously. financial penalties imposed on legal per- or natural person. Alongside the CoE, the EU is also sons? hhPut in Focus working on a new regime for simplified hhDecision as to the First Question Although it is up to the national court and expedited access to e-evidence fol- Drawing on the context and the pur- alone to determine whether national lowing a Commission proposal of April pose of FD 2005/214, the CJEU con- law can be interpreted in conformity 2018. For the discussion, see eucrim cluded that the concept of “legal person” with EU law, the CJEU stressed that na- 3/2019, p. 181 with further references. cannot be interpreted as an autonomous tional courts are empowered to pull out For the state of play of the proposal, concept but must be interpreted in light all the stops in order to ensure compat- see the EP’s Legislative Observatory of the law of the issuing State. The CJEU ibility with the wording and purpose of website. In parallel, the EU is also ne- does not consider the legislation itself EU law (here the framework decision). gotiating an e-evidence agreement with problematic but rather the implementa- The CJEU has thus applied the lessons the USA (see eucrim 4/2019, p. 248 tion of the FD in practice. It advises the learned in the context of the Europe- with further references). The USA has Polish court to consider whether, under an Arrest Warrant (judgment in Case already established an e-evidence legal the given circumstances, the infringe- C-573/17, Poplawski II) to another in- framework via its CLOUD Act. Andrea ment committed by the bank in Gdańsk strument of mutual recognition in crimi- Jelinek, the Chair of the EDPB, stressed can be attributed to the parent company nal matters, i.e., the mutual recognition that the establishment of a modernised Paribas with its seat in Warsaw. The of financial penalties. Against this back- instrument for the exchange of personal sanction can be regarded as having been ground, the present judgment in Bank data with third countries for fighting cy- imposed on the entity with a legal per- BGŽ BNP Paribas is of general signifi- bercrime is not only consistent with the sonality. As a result, the fine could be cance, because the CJEU applies basic Council of Europe acquis, but also fully enforced against Bank BGŽ BNP Pari- principles of its established case law on compatible with the EU Treaties and the bas S.A. the primacy of Union law. (TW) Charter of Fundamental Rights. (TW)

eucrim 1 / 2020 | 29 NEWS – Council of Europe

The total number of decisions on interim measures (1570) is stable com- pared with 2018 (1540). The Court granted requests for interim measures in 145 cases (a 1 % increase compared to 143 in 2018), with half of the requests granted in expulsion or immigration cases. Council of Europe On 31 December 2019, there were Reported by Dr. András Csúri 24,424 priority applications, the cases falling within the top three categories. This is an increase of 18 % compared to the beginning of the year and can be 9 April 2020, the Court announced that explained mainly by the higher number Foundations these deadlines had again been extended of applications concerning conditions of by another two months to 15 June 2020. detention in Russia and the lawfulness European Court of Human Rights This does not apply to the three-month of detentions in Turkey. The Court and period under Article 43 of the Conven- its Registry have continued to imple- ECtHR: Exceptional Measures due to tion for parties to file a request for refer- ment new methods and procedures in or- the Global Health Crisis ral to the Grand Chamber. der to speed up the processing of cases. On 27 March 2020, the ECtHR pro- The Court decided not to notify any Among the major events in 2019, the vided insight into its activities during further judgments and decisions from Court delivered its first advisory opin- the unprecedented global health crisis. 26 March 2020 on until normal activ- ion under Protocol No. 16 and the first Since 16 March 2020, the Court has ity resumes. With the exception of the infringement proceedings. The Superior taken a number of exceptional meas- Grand Chamber and particularly urgent Courts Network expanded considerably, ures announced in an earlier press re- cases, the Court will continue to adopt now covering 86 superior courts from lease. Its essential activities, including judgments and decisions but will post- 39 countries, and dialogue has con- the registering of incoming applica- pone their delivery until then. tinued with the Court of Justice of the tions, their allocation to the relevant European Union. Lastly, a delegation judicial formations, and especially the ECtHR: Publication of Annual Report from the Court attended the first Forum handling of priority cases have been and Statistics for 2019 of Regional Courts, bringing together principally maintained. As a general On 29 January 2020, the ECtHR pub- the three human rights courts: beside rule, teleworking and electronic com- lished its annual activity report and sta- the ECtHR, the Inter-American Court munication was put in place and the tistics for 2019. At the close of 2019, the of Human Rights, the African Court premises of the Court are not accessible number of applications pending before of Human and Peoples’ Rights, which for the public. the Court totalled 59,800. The majority President Sicilianos considered to be the Procedures were adopted for the of pending cases were against the Rus- main achievement of the year 2019. examination of requests for interim sian Federation (25.2 %), followed by measures under Rule 39 of the Rules cases against Turkey (15.5 %), Ukraine of Court, when there is an imminent (14.8 %), Romania (13.2 %), and Italy Specific Areas of Crime risk of irreversible harm. The hearings (5.1 %). scheduled for March and April were The number of new cases in 2019 Corruption cancelled. At the same time, making rose on account of an increase in ap- use of the written procedure, the Grand plications against Bosnia-Herzegovina, GRECO: Fifth Round Evaluation Report Chamber has been able to continue work the Russian Federation, Turkey, and on Croatia on some pending cases. As an excep- Ukraine. During the year, the Court de- On 24 March 2020 GRECO published tion, the six-month time limit for the livered judgments in 2187 applications its fifth round evaluation report on Croa- lodging of applications under Article 35 (a 20 % decrease compared to 2018). A tia. The focus of this evaluation round of the ECHR was suspended for a one- large proportion of these applications is on preventing corruption and promot- month period, while all time limits allot- were joined, and the number of judg- ing integrity in central governments (top ted in proceedings pending at the time ments actually delivered was 884 − a executive functions) and law enforce- were also suspended for one month. On decrease of 13 %. ment agencies. The evaluation focuses

30 | eucrim 1 / 2020 Specific Areas of Crime particularly on such issues as conflicts of and emerging trends within the police; intervals throughout their careers. As interest, the declaration of assets, and ac- „„Conducting a comprehensive risk as- the most conspicuous gap, the report countability mechanisms (for other reports sessment, thereby identifying problems highlights that a recent change in the on this evaluation round, see, e.g., eucrim and emerging trends within the police in law on the right to pursue outside activi- 1/2018, pp. 38–39; 2/2018, pp. 109–110; order to use this data for the proactive ties has resulted in an almost automatic 4/2018, p. 208; 1/2019, pp. 43–44 and design of an integrity and anti-corrup- authorisation. However, this right is to 3/2019, pp. 182–184). Regarding the tion strategy; be regulated by objective and transpar- report on Croatia, GRECO recognises „„Updating the code of ethics for police ent criteria in conjunction with effective the available anti-corruption tools but officers to include all relevant integrity supervisory arrangements. The internal calls for improvements in legislation issues, supplemented by a manual or supervisory system as a whole needs to and practice. Among the key challenges, handbook; be more proactive. integrity standards should also apply to „„Conducting a study on the activities persons working for the government in of police officers after leaving the police GRECO: Fifth Round Evaluation Report an advisory capacity, in particular mem- and, if necessary, introducing rules to on France bers of the government, state secretaries, limit the risks of the emergence of any On 9 January 2020, GRECO published and assistant ministers. A code of conduct conflicts of interest; its fifth round evaluation report on France. for people in senior positions needs to be „„Introducing a requirement for police The report calls primarily for improve- adopted. This should be complemented staff to report integrity-related miscon- ments in the effectiveness and practical by practical guidance, briefings, and con- duct encountered in the police service. application of the existing framework to fidential advice on conflicts of interest prevent corruption within the executive and other integrity-related matters such as GRECO: Fifth Round Evaluation Report branch (President of the Republic, min- gifts, outside activities, and contacts with on Belgium isters, members of private offices, and third parties. On 23 January 2020, GRECO published senior officials) and in the National Po- When recruiting, people in top ex- its fifth round evaluation report on Bel- lice and National Gendarmerie. ecutive functions should disclose their gium. The lack of an integrity policy or Among the positive legislative de- contacts with lobbyists/third parties and ethical framework for ministers and staff velopments, GRECO commends the later also disclose situations in which members of their private offices emerged establishment of the High Authority for their private interests could conflict as the most striking problem. There are Transparency in Public Life, the French with their official functions. A financial few regulations on incompatibilities and Anticorruption Agency, and the Na- statement should be submitted annually on issues such as relations to third par- tional Financial Prosecution Office. In to the Commission for the Prevention ties or the phenomenon of “revolving addition, it welcomes the adoption of a of Conflicts. The Commission’s ability doors.” Therefore, with regard to mem- multi-annual anti-corruption plan for the to obtain information should be further bers of private offices, GRECO recom- systematic identification of corruption enhanced by rules requiring officials to mends regulating their recruitment and risks and their prevention within minis- provide the necessary information. In employment and establishing an ap- tries, as well as legislation on whistle- addition, the available sanctions should propriate ethical code and implementa- blowers and the creation of a public reg- be reviewed to ensure that all breaches tion mechanisms. In general, documents ister identifying areas where ministers of the relevant law have the appropriate produced by ministers and their strategic will withdraw from the decision-making consequences. The procedural immunity units should be preserved in a way that process. of members of the government should makes them available to their successors, The core problem can be summarised be limited by exempting offences related and ad hoc reporting should be introduced as the need to better coordinate certain to corruption that are subject to public for persons in top executive functions measures and commitments between the prosecution. when conflicts arise between their pri- various actors. Accordingly, the multi- The public shows a low level of trust vate interests and their official duties. annual anti-corruption plan should also towards the police. GRECO therefore With regard to the Federal Police, the involve the Private Office of the Presi- recommends preventing corruption risks report calls for an increase in staff, as the dent of the Republic, while the codes of within the police force by means of the lack of resources has a particular impact conduct to be adopted by the ministries following: on the services for preventing and fight- and the Charter of Ethics of the Presi- „„Abolishing the practice of paying ing corruption. In addition, the code of dent’s private office should be aligned fines directly in cash to police officers; conduct must be updated, and the in- with each other in terms of integrity re- „„Carrying out a comprehensive risk as- tegrity of candidates must be verified quirements and sanctions for violations. sessment, thereby identifying problems when they change posts, also at regular In order to facilitate transparency and

eucrim 1 / 2020 | 31 NEWS – Council of Europe avoid conflicts of interest, GRECO also Assembly (21 June 2019), GRECO was for the ad hoc report. The report was proposes the following: alerted to possible political interference adopted during the 84th GRECO Gen- „„The public register, which lists the by the legislative branch in relation to eral Assembly (2–6 December 2019). areas in which ministers withdraw from public officials, prosecutors, and judges GRECO reaffirmed that the independ- decision-making, should also apply in Slovenia − in a letter from the Head ence of the judiciary is a cornerstone to members of private offices, as they of the Criminal Law Department of the of the rule of law and that, in principle, have an impact on the decision-making Slovenian State Prosecutor General’s appeals against court decisions should process; Office. GRECO decided to apply Rule be dealt with within the judiciary itself. „„In order to specify the role of lob- 34 of its Rules of Procedure, which may Given that the Constitutional Court has byists on the executive and decision- be triggered in exceptional cases when not yet taken final decisions and that making, members of the executive, in- GRECO receives reliable information some of the court cases are still pending, cluding the President of the Republic, on institutional reforms, legislative ini- GRECO will closely follow the assess- should publicly and regularly report on tiatives, or procedural changes that may ment of the situation in order to draw their meetings with lobbyists and on the lead to serious violations of Council of conclusions from the case as regards the issues discussed; Europe anti-corruption standards. In its adequacy of Slovenia’s anti-corruption „„The declaration of assets and inter- decision, GRECO explicitly recalled and integrity framework. ests submitted by the President of the that the prevention of corruption in rela- Republic should be examined upon tak- tion to members of parliament, judges, ing office in order to avoid any potential and prosecutors had been the subject of Money Laundering conflict of interest. its fourth evaluation round. The report also recommends that cor- The case concerns the setting up of a Moneyval: Fifth Round Evaluation ruption cases involving ministers be re- parliamentary inquiry into the judicial Report on Cyprus ferred to another court. They currently proceedings against a politician who On 12 February 2020, MONEYVAL fall within the jurisdiction of the Court was investigated and prosecuted, to- published its fifth round evaluation- re of Justice of the Republic, half of which gether with others, in a number of cor- port on the effectiveness of the Cypriot is made up of parliamentarians. ruption cases. The requested parliamen- anti-money laundering (AML) and coun- With regard to the National Police tary inquiry was aimed at investigating tering the financing of terrorism (CFT) and the National Gendarmerie, the re- possible politically motivated decisions regime and its level of compliance with port calls for the development of a by officials, prosecutors, and judges FATF Recommendations. MONEYVAL comprehensive strategy to prevent cor- involved in the criminal proceedings calls on the Cypriot authorities to take a ruption. In this context, security vetting (some of them still pending) and possi- more “aggressive” approach to combat- should be guaranteed throughout the ble violations of fundamental rights un- ing ML of criminal proceeds obtained entire police career and not only at the der the ECHR. The establishment of the outside Cyprus and to adopt a more time of recruitment. This should make parliamentary inquiry was approved by proactive stance on freezing and confis- it possible to account for changes that the National Assembly and the Minister cating foreign proceeds. MONEYVAL might make police force members more of Justice on the basis of the Constitu- states that Cyprus understands the ML vulnerable to corruption risks. In addi- tion and the Rules of Procedure of the and terrorist financing risks it faces to a tion, staff rotation should be provided Assembly. Subsequently, the State Pros- large extent; however, the understanding for in sectors that are more exposed to ecutor General filed a request for a con- of TF risk is less comprehensive. risks of corruption. stitutional review and a constitutional As an international financial centre, Lastly, the implementation of the complaint on the unlawfulness of such Cyprus is primarily exposed to external whistleblower legislation proved to be legislative intervention in the judiciary. ML threats, as non-residents may seek to complex and not entirely effective. The In a preliminary decision, the Slovenian transfer criminal proceeds to or through report therefore recommends that the Constitutional Court suspended the im- Cyprus, particularly through the Cypriot legislation be revised and the staff of plementation of the parliamentary in- banking system. They may also seek to the law enforcement branch given more quiry and emphasised that the law order- use trust and company service provid- training in this area. ing the parliamentary inquiry impeded ers, known in Cyprus as administrative the constitutional principle of the inde- service providers (ASPs), to facilitate GRECO: Ad hoc Report on Slovenia pendence of the judiciary. their aims. Although the terrorism threat On 18 February 2020 GRECO pub- GRECO invited the Slovenian au- is considered low in Cyprus, the authori- lished an ad hoc report under Rule 34 thorities to provide further information ties rate the terrorist financing (TF) risk on Slovenia. During its 83rd General on this issue, which formed the basis as medium, due to the fact that the coun-

32 | eucrim 1 / 2020 Specific Areas of Crime try is an international financial centre structures in order to evade sanctions, counts for approximately 20 % of Gi- and due to its proximity to conflict areas. constituting a significant vulnerability. braltar’s GDP and consists primarily of The elements of the Cypriot ML and The report states that the risk for the branches or subsidiaries of international CFT regime that are functioning include real estate sector has increased exponen- firms. The sector provides services pri- an understanding of the risks involved, tially since it has become the preferred marily to non-resident clients, includ- a good level of domestic cooperation choice of investment by which to acquire ing clients from high-risk jurisdictions. and coordination, support from the FIU citizenship under the Cyprus Investment The national risk assessments (NRA) to competent authorities, and timely and Programme. Therefore, a comprehen- conducted by Gibraltar identify the geo­ constructive assistance to other coun- sive ML and TF risk assessment of the graphic proximity to areas where or- tries. Among the areas that require ma- programme is necessary, together with ganised crime is active as a threat. The jor improvements, the report highlights significant enhancement of supervision main sources of criminal proceeds gen- that ML from criminal proceeds gener- of the real estate sector, in addition to the erated domestically are fraud, tobacco ated outside of Cyprus, which pose the introduction of measures to increase the smuggling, tax crimes, drug trafficking, highest threat to the Cypriot financial level of compliance of real estate agents and robbery/theft. Electronic money, system, need to be sufficiently pursued. with preventive measures. the trust and corporate service provid- Moreover, the competent authorities On the positive side, several mea- ers sector, and private banking (wealth have not been very proactive in freezing sures have been deployed to mitigate management) were identified in the and confiscating foreign criminal pro- some of the main risks effectively. There 2018 NRA as being among the most vul- ceeds at their own initiative, although is a good level of domestic cooperation nerable areas. The FT risk is considered they have been instrumental in assisting and coordination between the competent low to medium in Gibraltar. Although other countries in doing so. authorities, both on policy issues and at several FT investigations were com- The country has a developed compa- the operational level. The banking sector menced during the period under review ny formation and administration sector. has become more effective in mitigating (2014–2018), no cases have reached the As regards legal persons, no formal risk risks, which is largely due to the increas- prosecution phase yet. According to the assessment has yet taken place, which ingly sound supervisory practices of the 2018 NRA, there is no proof that the reduces the authorities’ ability to imple- Central Bank of Cyprus. The report also FT risk has materialized, and there was ment better targeted mitigating measures positively notes that, where there is ter- no evidence that such a risk arises from to ensure their transparency. rorism investigation/prosecution, the links to organised criminal groups oper- Weaknesses also exist in the imple- authorities also investigate the financial ating in neighbouring countries. mentation of preventive measures by the aspects and that a number of TF investi- The authorities have devoted sig- trust and corporate services sector as a gations have been carried out and steps nificant effort to raising awareness of whole. This has major implications for taken to increase awareness of terrorist the 2018 NRA findings, although their the availability of beneficial ownership financing risks. understanding of the results and, in information on legal persons and ar- The FIU is well able to support the general, of the ML and FT risks varies. rangements registered in Cyprus as well operational needs of competent authori- The key supervisors have a robust un- as for the reporting of suspicious trans- ties through its analysis and dissemina- derstanding of risks at the sectoral level, actions. tion functions. Cyprus has developed but the jurisdiction’s overall understand- While significant strides have been mechanisms that are capable of deliver- ing of ML/FT risks is limited by sev- made by Cyprus to implement a compre- ing constructive and timely assistance to eral shortcomings related to the NRA: hensive supervisory framework for trust other countries, both on a formal and an in particular, by the limited analysis of and corporate services providers, MON- informal basis. quantitative and qualitative data and by EYVAL calls for further major improve- underestimating the cross-border threat ments. In particular, trust and corporate Moneyval: Fifth Round Evaluation that Gibraltar faces as an international service providers have no uniform level Report on Gibraltar financial centre. The authorities demon- of understanding the risks involved in On 12 February 2020, Moneyval strated a good understanding of the risk evading targeted financial sanctions for published its fifth round evaluation re- of terrorism, but their understanding of TF and the proliferation of weapons port on the British Overseas Territory FT risk is affected by insufficient consid- of mass destruction. Given their role of Gibraltar. MONEYVAL calls on the eration of available data on transactions as gatekeepers, some service provid- authorities of Gibraltar to better use the to/from conflict zones and high-risk ju- ers may not always be in a position to tools and mechanisms they have in place risdictions. identify individuals or entities seeking to combat ML and FT. The FIU has increased its capacity in to conceal their identity behind complex The financial sector in Gibraltar ac- recent years and extended domestic co-

eucrim 1 / 2020 | 33 NEWS – Council of Europe operation with law enforcement and su- assets deriving from foreign predicates MONEYVAL noted that the super- pervisory authorities. This is one of the in complex and international cases re- visory authorities apply licensing and strengths of the overall regime. main largely undetected and therefore screening measures to prevent crimi- However, law enforcement authori- that crime is being neither restrained nor nals and their associates from abus- ties have made only limited use of the confiscated. ing financial institutions and DNFBPs. FIU’s analytical products, which there- Law enforcement authorities demon- However, they target only new applica- fore had only a marginal impact on the strated a good understanding of poten- tions and not already licensed individu- development of investigations into ML tial FT risks in an international financial als. Although the competent authorities and predicate offences. Better results centre such as Gibraltar. However, the apply a risk-based approach when car- were achieved with regard to FT inves- relative lack of reports on suspicious rying out their supervision duties, fur- tigations. transactions raises concern as to whether ther improvements are needed in this The report recognises improvements the lack of any prosecutions for TF is in area. Sanctions for non-compliance in the legal framework, which provides line with the jurisdiction’s risk profile. with anti-ML and CTF requirements the authorities with a solid basis by Through legislation enacted prior to are not considered proportionate and which to detect, investigate, and pros- the MONEYVAL on-site visit, Gibraltar dissuasive. ecute ML/FT. Still, the effective inves- now ensures the implementation of the As regards the misuse of legal per- tigation and prosecution of ML offences UN’s targeted financial sanctions re- sons and arrangements for ML and FT remains poorly represented. There were gimes on TF and the financing of prolif- purposes, the report states that Gibral- several convictions for self-laundering eration of weapons of mass destruction tar has taken a number of measures, but involving domestic predicate offences, without delay. The report also reflects understanding of the risks is limited. but no successful prosecutions or con- that obligations are being implemented Therefore, the establishment of a Reg- victions in relation to third-party and to some extent by reporting entities such ister of Ultimate Beneficial Owners was stand-alone ML. This is not in line with as financial institutions and designated an important preventive measure. the jurisdiction’s risk profile. non-financial businesses and professions Lastly, the report notes that Gibral- The legislation provides all that is (DNFBPs). Their understanding of the tar’s legislation has a comprehensive necessary for the detection, restraint, ML risk is satisfactory overall but dif- framework for international co-oper- and confiscation of proceeds and- for fers across the sectors. On the contrary, ation, which enables the authorities to feiture of the instrumentalities of crime. the FT risk is not properly understood, provide assistance, receiving generally Nevertheless, this field needs fundamen- and the quality of reporting suspicious positive feedback from international tal improvements as well. In particular, transactions remains a concern. partners.

34 | eucrim 1 / 2020 Articles Articles / Aufsätze

Fil Rouge

The ASFJ is a key policy under the Lisbon Treaty, its par- Under the heading of legislative approximation, the pro- ticular interest being the criminal law field, based on the cedural rights of defendants in criminal proceedings are principle of mutual recognition, in order to promote judicial addressed. In this context, the fourth contribution by Prof. cooperation between Member States. At the same time, Valbuena González gives a general overview of this topic, the procedural rights of defendants in criminal proceedings from the preparation of the Green Paper in 2003 to the pres- and the protection of victims of crime must be respected. ent promulgation of six Directives on the subject, together Organic and substantive criminal law perspectives must with the required legal reforms in the Spanish Criminal Pro- also be taken into account. The authors contributing to cedure Act. Prof. Vidal Fernández analyses one of these this special issue are part of a research team from differ- specific Directives, i.e. Directive (EU) 2016/1919 on legal ent Spanish universities who have been working on these aid and its implementation in Spain in 2018. Ultimately, Prof. matters for a long time. For this reason, we have focused Sánchez Domingo deals with the substantive criminal law on Spain as a model in order to analyse the impact of Euro- approach in the EU and Spain using the example of protec- pean regulations on the country’s national legal system and tion of minors and examining specific Directives and their judicial practice. implementation in this area. First, Prof. Pérez Marín outlines a new scenario in the EU The articles in this issue are part of the research project and Spain after the creation of the European Public Pros- “The evolution of the European judicial area in civil and ecutor’s Office, which makes it necessary to build upa criminal matters: its influence on the Spanish process.” The genuine criminal law structure. Second, Prof. Garcimartín authors are grateful to the Spanish Ministry of Science, In- Montero provides an overview of mutual recognition instru- novation and Universities, which financially supported this ments, with a focus on the 2008 Council Framework Deci- project. The authors are also grateful to Alba Fernández sion related to custodial sentences and measures involving Alonso and Indira Tie for the linguistic review of their con- deprivation of liberty and its implementation into Spanish tributions. law. Third, Prof. Tinoco Pastrana envisages the future of electronic evidence in relation to the proposed EU legisla- Prof. Dr. Mar Jimeno-Bulnes tion and its possible adaptation in Spain. Professor of Procedural Law, Universidad de Burgos (Spain)

eucrim 1 / 2020 | 35 New Challenges for Judicial Cooperation in Spain

The European Public Prosecutor’s Office Protecting the Union’s Financial Interests through Criminal Law

Prof. Dr. Mª Ángeles Pérez Marín*

The protection of the financial interests of the European Union and the defence of the European financial system are two as- pirations that have accompanied the European Union since its foundation. They are part of the nature of the Union, which was born to overcome the economic crisis installed in Europe after the Second World War. Today, such objectives have been rec- ognized in the Treaty on the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). The undeni- able economic imprint of the Union is shown in the different areas in which its legislative activity is carried out. The ambitious financial policy only makes sense on a solid economic and financial context, which requires the protection of the budget and the prevention and sanction of conducts undermining the economic pillars. The European Public Prosecutor´s Office (EPPO) marks the turning point in criminal policy that seeks to strengthen the fight against fraud. In this legal context, it is interesting to highlight two aspects. First, the European legislator understands that criminal law is the most effective instrument to com- bat fraudulent activities affecting the financial interests of the Union; as a consequence, criminal law becomes a prima ratio barrier against crime. Second, the EPPO will be the only body to investigate and prosecute such crimes. The objective of this article is to analyse these aspects and reflect on the limits on the material competence attributed to the EPPO.

I. Introduction essary balance between the philosophical-legal principles and postulates of the national legal systems and the Union system. The economy is an essential pillar of the European Union, and as its development largely depends on the solidity of the finan- The EPPO was not conceived as an indispensable element in cial system, it was necessary to ensure that the Member States development of the Union’s criminal policy, because, in an recognised the legal requirements that justified the Union’s de- area based on the principle of mutual recognition and mutual cisions to protect the financial interests. Since its foundation, trust, the recognition and implementation of judicial deci- the European Union has been committed to fighting fraud, sions would be very quick. Nevertheless, the States have not promoting different policies to prevent any criminal conduct achieved the expected results, and the success of the anti-fraud that could affect the economic and financial pillars. We could policy has been very limited. Instead, the EPPO was presented understand, then, that the decision to provide the legal bases as an instrument of added value, around which the legal ar- to implement a new criminal structure against fraud is justified chitecture of future criminal policy tactics for protecting the by the fact that the action of a single body, with competence EU’s financial interests would revolve, the measures and deci- to investigate and prosecute in the area of freedom, security sions of the EPPO becoming immediately effective in the EU and justice, augurs a greater success for this purpose. But the Member States. Member States belong to different legal families and each na- tional law is inspired by different legal principles. Therefore, it This article generally aims to provide a better understanding was essential that the EU Member States accept the anti-fraud of the importance that this new supranational body to fight solutions offered by the Union in their legal system. As a con- EU fraud acquired in the current legal context of the protec- sequence, it would also become necessary to adopt means or tion of the EU’s financial interests. Against this background, instruments to resolve conflicts of jurisdiction between States it analyses three aspects: Based on the decision of the Euro- and incompatibilities arising between the solutions offered by pean legislator, which raised criminal law to the category of the Union and those offered by national laws. In this context, the most effective instrument to protect financial interest, the the Treaty of Lisbon entailed a qualitative breakthrough in the article first examines the evolution of the fight against fraud European Union’s fight against economic and financial crime. and the legal environment in which the EPPO operates, and Proof of this, is the creation of a centralised European Public second, the basic concept of the fight against fraud as provided Prosecutor’s Office (EPPO) with exclusive competence to inves- in the Treaty of Lisbon. The third section takes a closer look tigate and prosecute such offences. But, one of the most complex at EPPO’s material competence before final remarks on the aspects was to reflect in Regulation (EU) 2017/19391 the nec- subject matter are made.

36 | eucrim 1 / 2020 EPPO – Protecting the Union’s Financial Interests through Criminal Law

II. The Legal Environment in which the EPPO Operates used to finance terrorist activities within the Union’s territory. The obligations for financial institutions, established by the To put the above-mentioned preliminary considerations in a EU’s AML legislation7, to adopt a set of compulsory compli- nutshell, the fight against fraud affecting the European Union’s ance measures,8 in order to control risky financial operations, financial interests is undoubtedly one of the most important means that financial institutions have also become, to some objectives of Europe’s current criminal policy.2 At the mo- extent, instruments of criminal law in the fight against fraud. ment, we have a legal system made up of administrative and Therefore, the degree of involvement and commitment in this criminal rules, instruments, and bodies that serves the purpose area is not only binding on the European Union and on the of countering fraud affecting the European Union and recover- State authorities (judicial, police, or administrative). Indeed, ing the amounts that have been defrauded. In order to accom- both public and private financial institutions (and certain pro- plish these objectives, it was necessary to involve the Member fessionals who manage several types of economic transactions States for two reasons: first, the European Union lacked crimi- or may be aware of doubtful aspects of their clients’ financial nal sanctioning legitimacy before the entering into force of the activities) must also act as bodies of the criminal law system TFEU and, therefore, it could only operate through the States; and are entrusted with the task of being a kind of first response second, in order to protect the Union’s financial interests, in preventing fraud. Member States remain essential for the effective functioning of the system provided for in the TFEU. Given the need to protect the financial interests, the European legislator has been forced to regulate aspects of certain con- Let us briefly call to mind the most recent developments in the duct that has traditionally been linked to fraudulent activities. fight against fraud in the EU. Since the Convention on the pro- This is the case, for example, for corruption, which is some- tection of the European Communities’ financial interests (PIF times clearly linked to fraud. Thus, the Commission’s report Convention),3 with its Protocols, and the 1997 Action Plan to on anti-corruption policy, published in February 2014, recog- combat organized crime,4 which took shape in Joint Action nised that corruption affected all Member States without ex- 98/742/JHA on corruption in the private sector,5 the rules on ception and that its cost to the Union’s economy at the time fighting fraud progressed towards the current legislation. To- amounted to some €120 billion per year.9 In the same way, and day, Art. 325 TFEU imposes an obligation on Member States as the Commission already indicated in 2004 in its Commu- to create an internal procedural regime to protect the financial nication to the Council and the European Parliament on the interests through the adoption of dissuasive and effective mea- prevention of and fight against organised crime in the finan- sures, without establishing specific criteria or methods in this cial sector,10 such corruption offences include money launder- regard. However, the introduction of the EPPO into the orga- ing, financial fraud, and counterfeiting of the euro. Therefore, nizational structure of the fight against fraud and the fact that in 2014, based on the Pericles 2020 Programme, Regulation it is (exclusively) competent for investigating fraud crimes (in (EU) No. 331/2014,11 established in its Art. 12(1) that the their many forms) means an alteration of the rules and prin- Commission shall take measures “ensuring that (…) the fi- ciples in that the domestic legal order enables specification nancial interest of the Union shall be protected by the appli- of the competent institutions and bodies for investigation and cation of preventive measures against fraud, corruptions and prosecution.6 Following the mandate given in Art. 86 TFEU, any other illegal activities (…).” Art. 3 of the same Regulation the domestic legal authorities will be excluded in favor of the also indicates that the principal objective shall be to prevent EPPO, as the centralized body of the European Union has ex- and combat counterfeiting and related fraud, thus enhancing clusive competence to investigate crimes affecting the Union’s the competitiveness of the Union’s economy and securing the financial interests. sustainability of public finances.

We should not forget that economic crime has evolved, and this In the same vein, Directive 2014/62/EU12 on the protection of evolution has had a strong influence on the selection of legal the euro and other currencies against counterfeiting by crimi- strategies to combat such crime and prevent its results. These nal law was approved, providing the anti-fraud strategy with a forms of crime entail extraordinarily sophisticated methods, new instrument. It stressed the need to criminally investigate and new opportunities in the financial system to mask such acts of counterfeiting by means of more effective rules and illicit activities are regularly found. Logically, the absence of allowing for the establishment of common penalties for the controls on economic traffic between financial entities oper- most serious offences. In 2017, the PIF Directive13 specified ating within the European Economic Area is due to mutual that certain types of conduct against the common tax system, trust between Member States. But these circumstances have and against budget expenditure and revenue items, should be led to an increase in the use of financial channels for laun- made punishable in all Member States by laying down com- dering illegally obtained profits, just as they have also been mon minimum penalties and specifying the substantive ele-

eucrim 1 / 2020 | 37 New Challenges for Judicial Cooperation in Spain ments of criminal law that must be incorporated into national the same measures they would apply to combating domestic legal systems (minimum standards). In 2019, the European fraud. For its part, paragraph 3 lays down the duty of the Mem- Parliament recognized that “many Member States do not have ber States to coordinate their actions and strategies through the specific laws against organised crime, while its involvement in Commission, which is the coordinating and monitoring body cross-border activities and sectors affecting the EU’s financial (as in the pre-Lisbon phase). interests, such as smuggling or counterfeiting of currency, is constantly growing.”14 In any case, we should take into account the differences be- tween the regulation on judicial cooperation in criminal mat- The importance of the measures outlined above has not been ters – Arts. 82 to 86 TFEU – and the regulation on the fight lost. In order to strengthen the fight against fraud, the Euro- against fraud – Art. 325 TFEU (placed in the economic context pean Union has increased its budget by €181 million for the of the Treaty). It seems that the legislator intended to make next multiannual financial period 2021–2027. It supposes evi- an express statement on the separation between the crimes of dent support for the efforts of the Member States in the fight Art. 83 and the crimes of fraud affecting the financial inter- against corruption and other irregularities affecting revenue ests. The latter seemingly deserves special treatment within and expenditure items.15 In addition, the legislation on fraud the criminal law because this is the only instrument that of- committed through non-cash means of payment16 was also re- fers the dissuasive measures required by Art. 325. Moreover, cently addressed. if Art. 86(1) and (2) TFEU – the provisions on judicial coop- eration in criminal matters – expressly state the competence In this context, the provision of Art. 22(3) of Regulation (EU) of the EPPO to investigate fraud against the Union’s financial 2017/1939 makes sense: “[t]he EPPO shall also be competent interests,18 regardless of the fact that this legal proceeding is for any other criminal offence that is inextricably linked to found in the financial provisions of the TFEU, it is easy to criminal conduct that falls within the scope of paragraph 1 of understand why the legislator believed that the fight against this Article.” But the competence, with regard to such criminal fraud must be tackled by means of criminal law, giving it such offences, may only be exercised in conformity with Art. 25(3). importance that a specific criminal law enforcement body was In any case, Regulation 2017/1939 opens up a new stage in the created for this purpose. The creation of such measures and fight against fraud.17 bodies for crimes of different nature never had been proposed before. In conclusion, we can understand that, for these finan- cial offences, the concept provided for in the Lisbon Treaty III. The Fight Against Fraud for Protecting Financial combines criminal cooperation with a certain nuance of crimi- Interests in the Treaty of Lisbon nal integration, clearly advancing the initial idea of approxi- mation or harmonization of the legislation. The provision on the harmonisation of criminal law – Art. 83(1) TFEU –, refers to a list of criminal areas that do not explicitly include the crime of fraud against the Union’s finan- IV. Material Competence of the EPPO cial interest. Paradoxically, the EPPO has been designed as the only body with exclusive competence to investigate such The provision on the material competence of the EPPO – crimes – Art. 86(2) TFEU. We have to resort to the “Financial Art. 22 of Regulation (EU) 2017/1939 – makes reference to Provisions” of the Treaty to find the regulation concerning the the offences in the PIF Directive “as implemented in national fight against fraud in Art. 325 TFEU. Specifically, the referen- law.” In this Article, the European legislator takes on the man- tial rule contained in Art. 310(6) TFEU directs us to Art. 325, date established in Art. 83(1) TFEU, which requires the estab- which establishes, in its first paragraph, the guidelines for lishment of minimum rules concerning the definition of crimi- building the legal architecture that will protect the EU’s finan- nal offences and sanctions in the areas of particularly serious cial interests. As we can read in this article, the Member States crime with a cross-border dimension. However, the European may be the first barrier to controlling crime, and the measures legislator is also aware of the differences between national adopted by national legislators for this purpose may have a laws. This supposes that the transposition of the Directive´s clear dissuasive effect. The effectiveness of the measures cho- rules will not be homogeneous and, therefore, the applica- sen should definitely place Member States in a position to offer tion of the original mandate of the EPPO based on the Direc- the protection required by the Union. tives will not be homogeneous either. Since Regulation (EU) 2017/1939 subjects the EPPO’s actions to the regulation of the Based on the principle of assimilation, paragraph 2 of Art. 325 system in which it operates, this approach must accept occur- TFEU demands that the Member States protect the Union’s ring procedural differences, e.g., the regulations on (gathering financial interests against fraud with the same diligence and and use of) evidence, and the possibilities for participation of

38 | eucrim 1 / 2020 EPPO – Protecting the Union’s Financial Interests through Criminal Law victims or other parties in the criminal process. Such proce- nected to fraud, because trafficking in arms, drugs, or human dural differences may constitute obstacles that are difficult to beings, as well as organised crime generate a type of fraud overcome when attempting to ensure identical protection of affecting the Union´s budget items. Therefore, the competence the rights at stake. So, there will be differences in the criminal of the EPPO may also be activated in those criminal areas investigation (depending on the State where the EPPO investi- described in Art. 83 TFEU, if the connection between those gates) and there will be differences in the judgement (depend- crimes and any other activity that affects the financial interests of ing on the transposition of the PIF Directive). the Union are proved, under the condition that the other require- ments foreseen in the Regulation (EU) 2017/1939 were met. Coming back to the EPPO’s material competence, we can see that there is a connection between fraud – as the generic area Closer inspection in this context reveals that Art. 22(3) and of crime defined in Art. 1 of the PIF Directive and Art. 22 of Art. 25 of Regulation (EU) 2017/1939, which regulate the EP- Regulation (EU) 2017/1939 that the EPPO is competent for PO’s competence if offences are inextricably linked with the – and other illegal acts. Effectively, the Union’s financial in- criminal offences affecting the financial interests of the Union, terests can be damaged not only by acts that directly manifest are provided for in the PIF Directive (Art. 22(1) of the Regula- fraud, but also through activities that mask the same fraudulent tion). We learn from these provisions that the EPPO’s compe- purpose or cause the same effect without, apparently, consti- tence is given under the following conditions: tuting fraud. „„There is an inseparable (inextricable) link between a crimi- nal offence and a PIF offence; The link between other offences and fraud may lead to an al- „„The criminal conduct that can be subsumed in one of of- teration of the initial competence to investigate – or may even fences provided for by the PIF Directive (as outlined in extend the EPPO’s competence. The offences provided for in Art. 22(1) of the Regulation) is sanctioned by the national the PIF Directive do not usually occur autonomously and in law of the affected State with a higher penalty than the sanc- isolation, because some of them, like money laundering, e.g., tion provided for the linked criminal offence at issue. require at least a previous illicit activity whose proceeds are to be introduced into licit economic trafficking. These “laun- However, the Regulation (EU) 2017/1939 has established one dered” amounts may be intended to finance other illegal activi- exception to the above rule: if the PIF offence were not con- ties. Hence, Art. 3(4) lit. d) of the 4th Anti-Money Laundering sidered the main offence, the competence to investigate will Directive19 − when defining the notion of “criminal activity” as shift away from de EPPO. And this, regardless of the penalties a predicate offence of money laundering that triggers measures proscribed for each of the related crimes. for the prevention of the illegal use of the financial system – makes reference to “fraud affecting the financial interests of If several victims are affected by the criminal offence(s), the Union” and thus indirectly refers to the PIF Directive. The Art. 25(3) lit. b) of the Regulation attributes competence to the PIF Directive itself states in Art. 4(1) that money laundering, EPPO only when the damage caused to the Union’s financial as described in Art. 1(3) of the 4th AML Directive, may be interests exceeds the damage caused to another victim. If this one of the acts affecting the Union’s financial interests. This is not the case, the domestic authorities have competence to possible link between money laundering and infringement of investigate the crime. However, this latter rule is subject to a the Union’s financial interests is the point at which the EPPO’s further exception: the EPPO is always competent as regards competence with regard to such offences is triggered. We must the fraud offences referred to in Art. 3(2) lit. a), b) and d) of the also interpret the provisions of the PIF Directive in this context. PIF Directive.20 Yet another exception in relation to Art. 25(3) lit. b) is provided for in Art. 25(4) of the EPPO Regulation, As a consequence, the European legislator established a sys- which recognizes the competence of the EPPO if it appears tem of general protection against fraud by adopting a set of that the EPPO is better placed to investigate or prosecute. rules that both protect the financial system and prevent its misuse through laundering the illicit proceeds of crime or fi- nancing terrorist activities in operations that mask fraud. In the V. Final Remarks latter case, we can see that there is an additional connection between laundering and fraud, as terrorist organisations are fi- The European Union’s strategy in the fight against fraud has nanced through illegal activities, which, by their very nature, shifted towards criminal law. In order to defend the Union’s are directly linked to acts of fraud in their various forms. financial system, dissuasive criminal measures and other ad- vanced legal options must be used. The effectiveness of such Ultimately, it is worth highlighting that many cross-border measures is not only based on sanctioning of the criminal con- criminal activities mentioned in Art. 83(1) TFEU are con- duct affecting the Union’s financial interests, but also on the

eucrim 1 / 2020 | 39 New Challenges for Judicial Cooperation in Spain probability of suffering a criminal sanction. That sanctioning that it generates, but also because of the special relationship perspective acts as a preventive and dissuasive barrier against between the EU Member States and the European Union. In crime. this context, we should keep in mind that the EPPO has a double facet: it is a body of the European Union – the first The prevention of financial fraud is problematic, however, and body of the Union responsible for criminal prosecution22 − requires a multidisciplinary solution. The choice of a single independent from the Member States, and, paradoxically type of measure, e.g. criminal measures, should not discrimi- and simultaneously, requiring close cooperation with the nate others, e.g., solutions in the administrative law field.21 Member States. It is necessary to create a comprehensive protection barrier against crime. Otherwise, the barrier would be broken allow- It is certain that the true value of the EPPO cannot be proven ing authors of a crime to find legal loopholes or systematic through theoretical analysis and studies. It is necessary to wait vulnerabilities. Faced with this circumstance, the legislators for its operational activity. However, today we can already ob- both at the European and national levels have implemented a serve that the European Union and the Member States have set of measures – criminal compliance measures –, that must taken a step that will change the foundations of the national be incorporated and managed by entities operating in the fi- criminal and procedural laws. The EPPO cannot be considered nancial system. These actors are obliged to control the legality an isolated body because it assumes competences that hitherto of financial operations or economic transactions, minimizing belonged to national law enforcement bodies and it exercises in this way crime risks to the financial system. Consequently, its powers through national law. Therefore, we are heading for the effectiveness of the fight against fraud depends on the real a merger of Union criminal law and the national criminal laws. interconnection between measures agreed in the field of crimi- In the context of the fight against fraud affecting the EU’s fi- nal law and those that must be adopted in the field of civil, nancial interests, we are witnessing a progression towards the commercial, and administrative law. This approach especially integration of criminal law systems. Obviously, the European articulates with the decision to set up the European Public Union and its Member States are walking a path marked by Prosecutor’s Office. This is not only because of the novelty difficulties, but it is essential to advance towards a greater de- that this new body implies and the expectations (and doubts) gree of liberty, security, and justice.

7 In this regard, see, especially, 4th Directive [Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the preven- Prof. Dr. Mª Ángeles Pérez Marín tion of the use of the financial system for the purposes of money launder- Associate Professor of Procedural Law, ing, repealing Directive 2005/60/EC of the European Parliament and of University of Seville the Council and Commission Directive 2006/70/EC (O.J. L 143, 5.6.2015, 73–117)], which was partially amended by 5th Directive [Directive 2018/843 of the European Parliament and of the Council of 30 May 2018, O.J. L 156, 19.6.2018, 41–74]. 8 See M. Gómez Tomillo, Compliance penal y política legislativa, Tirant lo Blanch, Valencia, 2016; M. González, “Compliance: más allá de la Responsabilidad Penal”, (2016) 919 Actualidad jurídica Aranzadi, 11; E. de Urbano Castrillo, “La responsabilidad penal del compliance officer”, (2016) 5 Revista Aranzadi Doctrinal, 205–214; I. Colomer Hernández, “Régimen * The financial support of the Spanish Ministry of Science, Innovation and de exclusión probatoria de las evidencias obtenidas en las investigacio- Universities for the research project “The evolution of the European judi- nes del compliance officer para su uso en un proceso penal (1)”, (2017) cial area in civil and criminal matters; its influence on the Spanish process Diario La Ley, 9080 (CAJI) - PGC2018-094209-B-I00” is gratefully acknowledged. accessed 1 January 2020; M. Ruiz de Lara, (coord.), Compliance penal y 1 Council Regulation (EU) 2017/1939 of 12 October 2017 implementing responsabilidad civil y societaria de los administradores, Wolters Kluwer, enhanced cooperation on the establishment of the European Public Pros- Madrid, 2018. ecutor’s Office (‘the EPPO’), O.J. L 283, 31.10.2017, 1.71. 9 Report from the Commission to the Council and the European Parlia- 2 See also M.A. Pérez Marín, “Instrumentos orgánicos de cooperación ment – EU anticorruption report, 3.2.2014, COM(2014) 38 final. judicial: en especial, la Fiscalía Europea”, in M. Jimeno Bulnes (ed.), R. 10 Communication from the Commission to the Council and the European Miguel Barrio (coord.), Espacio judicial europeo y proceso penal, Tecnos, Parliament on the prevention of and fight against organised crime in the Madrid, 2018, pp. 29–55. financial sector, 16.4.2014, COM(2004) 262 final. 3 Council Act of 26 July 1995 drawing up the Convention on the protection of 11 Regulation (UE) No. 331/2014 of the European Parliament and of the the European Communities’ financial interests, O.J. C 346, 27.11.1995, 48. Council of 11 March 2014 establishing an exchange, assistance and train- 4 Report of 29 October 1997 on the Action Plan to combat organised crime ing programme for the protection of the euro against counterfeiting (The (742/197 – C4-0199/97), PE 223.427/fin. ‘Pericles 2020’ programme) and repealing Council Decisions 2001/923/ 5 O.J. L 358, 22.12.2018, 2. EC, 2001/924/EC, 2006/75/EC, 2006/75/EC, 2006/76/EC, 2006/849/EC and 6 V. Moreno Catena, Fiscalía Europea y Derechos fundamentales, Tirant 2006/850/EC, O.J. 103, 5.4.2014, 1–9. lo Blanch, Valencia, 2014, p. 342. 12 Directive 2014/62/EU of the European Parliament and of the Council

40 | eucrim 1 / 2020 EPPO – Protecting the Union’s Financial Interests through Criminal Law

of 15 May 2014 on the protection of the euro and other currencies against Vision to Reality”, (2017) eucrim, 125–135; L. Kuhl, “The European Public counterfeiting by criminal law and replacing Council Framework Decision Prosecutor’s Office – More Effective, Equivalent and Independent Criminal 2000/383/JHA, O.J. L 151, 21.5.2014, 1–8. Prosecution against Fraud?, (2017) eucrim , 135–143. 13 Directive (EU) 2017/1371 of the European Parliament and of the Council 19 Cf. note (10). of 5 July 2017 on the fight against fraud affecting the financial interests of 20 Art. 3(2) lit. a) and b) of Directive 2017/1371 defines the criminal of- the Union by means of criminal law, O.J. L 198, 28.7.2017, 29–41. fences of fraud affecting the Union’s financial interests in respect of non- 14 European Parliament resolution of 31 January 2019 on the Annual procurement-related and procurement-related expenditure. Art. 3(2) lit. d) Report 2017 on the protection of the European Union’s financial interests – of the Directive defines the criminal conduct of fraud affecting the Union’s fight against fraud (2018/2152(INI)). financial interests in respect of revenue arising from VAT own resources. 15 See press release “EU Budget: €181 million to strengthen the fight However, the harmonisation of this VAT fraud by the Directive only ap- against fraud affecting de EU Budget”, https://ec.europa.eu/commission/ plies to serious offences. Art. 2(2) of the Directive defines as “serious presscorner/detail/en/IP_18_3967, accessed 2 November 2019. offence” the necessity that intentional acts or omissions are connected 16 Directive (EU) 2019/713 of the European Parliament and of the Council with the territory of two or more Member States of the Union and involve of 17 April 2019 on combating fraud and counterfeiting of non-cash means a total damage of at least € 10.000.000, Art. 22(1) of the EPPO Regulation of payment and replacing Council Framework Decision 2001/413/JHA, O.J. established corresponding restrictions on the competence of the EPPO to L 123, 10.5.2019, 18–29. prosecute these VAT offences. 17 M.A. Pérez Marín, “La estructura orgánica de la Unión Europea en la 21 OLAF is indispensable to protect the EU budget and to prevent fraud lucha contra el fraude y contra la delincuencia organizada transnacional: affecting the financial interests. See “Communication from the Commis- presente y futuro”, (2017) 5 Revista Internacional Consinter de Direito, sion to the European Parliament, The Council, the European Economic 15–17 and Social Committee of the regions and the court of auditors – Commis- accessed 10 December 2019. See by the same author, La lucha contra la sion Anti-Fraud Strategy: enhanced action to protect the EU budget”, criminalidad en la Unión Europea: el camino hacia una jurisdicción penal 29.4.2019, COM(2019) 196 final. común, Atelier, Barcelona, 2013. 22 Eurojust and Europol can also be considered “criminal bodies” of the 18 On this same matter, see P. Csonka, A. Juszczak, E. Sason, “The EU, however they still have only cooperation and coordination tasks in the establishment of the European Public Prosecutor’s Office: The Road from area of criminal law.

Mutual Recognition of Judgements in Criminal Matters Involving Deprivation of Liberty in Spain

Prof. Dr. Regina Garcimartín Montero*

Council Framework Decision 2008/909/JHA of 27 November 2008 “on the application of the principle of mutual recognition to judgements in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union” was implemented in Spain by the introduction of new rules into the Mutual Rec- ognition Act. Achieving social rehabilitation is the core objective of the Framework Decision. This has also practical con- sequences for the implementation of this instrument, for example requiring ties on the part of the sentenced person with the executing State. Some of the most controversial procedural issues in Spain are analysed in this article, including the consent of the sentenced person and the grounds for the adaptation of the sentence by the executing State under Spanish law.

I. Legal Framework in Spain included in a new statute, which aims to integrate the legisla- tion of the different EU instruments on mutual recognition into The 1999 European Council meeting in Tampere was the start- a single act (called Mutual Recognition Act). This technique ing point for the approval of a significant number of Euro- aims to guarantee better transposition and greater clarity, as pean regulations dealing with mutual recognition in criminal claimed by the Spanish legislator in the preamble to the Act.1 matters during the first decade of the new millennium. These From 2014 onwards, every EU mutual recognition instrument regulations led to a change in the legislative techniques of Eu- has been transposed by an amendment to the Mutual Recogni- ropean instruments in Spain. Previously, each mutual recogni- tion Act. Every instrument is regulated in one of the titles of tion instrument was implemented by means of an individual the Act, and three chapters can be found under each title: the transposition act. After 2014, all European instruments were first chapter regulates general provisions, the second one the

eucrim 1 / 2020 | 41 New Challenges for Judicial Cooperation in Spain rules to be followed when Spain is the issuing State, and the the place to which that person is attached based on habitual third establishes the regulation to be applied when Spain is the residence and on elements such as social or professional ties.” executing State. For some instruments, there is a fourth chap- Recital 9 was probably inspired by the ECJ’s judgement of ter that includes additional dispositions. 17 July 2008, Case C-66/08, Szymon Kozłowski,2 in which the Court established a person’s connection with the execut- Spain missed the transposition deadline for Framework Deci- ing State within the context of the Framework Decision on the sion 2008/909/JHA, which was to have been implemented by European Arrest Warrant.3 The aim of the European legislator December 2011; the implementation law was finally approved was presumably to avoid situations, in which the mere fact of in 2014. Arts. 63 to 92 of the Mutual Recognition Act pro- “staying” in one country is considered a stronger link rather vide for the recognition and execution of criminal judgements than the sentenced person’s culture, profession, or family rela- involving deprivation of liberty. The present article assesses tions. whether the Spanish legislator achieved the main purposes of this European instrument; it will also outline where – in my The meaning of the wordings “Member State where the sen- opinion – the Spanish legislator has not succeeded in properly tenced person lives” or “where the person stays” used in reflecting the Framework Decision. The main features of the Framework Decision 2008/909/JHA is not as precise as “the regulation on the mutual recognition of judgements imposing place of residence.” Since these former notions are undefined deprivation of liberty according to the Spanish Mutual Recog- legal concepts, it is at the judge’s discretion to decide whether nition Act will be explained. cultural, professional, and family links – which are not always readily apparent − are given in each case. This decision in- volves both the issuing State (which decides whether it en- II. Links of the Sentenced Person with the Executing dorses the transfer) and the executing State (which takes a de- Member State cision on the acceptance of the petition of the issuing State). From the perspective of the issuing State, the significant role Framework Decision 2008/909/JHA pursues the social reha- of prison officers and social workers should also be taken into bilitation of the sentenced person. Both the Framework Deci- account in its consideration, because they are required to know sion and the Spanish Mutual Recognition Act do not define well the circumstances and possible benefits for the rehabili- the meaning of “social rehabilitation;” therefore, it is up to tation of the inmate. In fact, Spanish statistics show that the the judge to decide whether the circumstances that enable the number of petitions for transfer varies considerably from one rehabilitation are met in each individual case. In my opinion, prison to another, depending on the initiative of prison offic- however, the Spanish law has failed to accurately reflect the ers.4 connection between achieving social rehabilitation and link- ing the sentenced person with the executing State, i.e., Spain, Given the aforementioned framework of Union law, the Span- which will be further elaborated in this section. ish Mutual Recognition Act did not always take into account these nuances in meaning in the words “Member State where Recital 9 of the Framework Decision provides a number of a person lives.” Only Art. 67 of the Act, which regulates the guidelines that may be helpful for the authority issuing a re- exceptions for the necessary consent of the sentenced person, quest for the transfer of a sentenced person. In this context, refers to economic, professional, or family links with the ex- social rehabilitation is easier to accomplish if the sentenced ecuting State.5 Hence, this rule imparts the proper meaning of person has some links with the State in which the sentence is “place of residence” or “place where the person lives” precise- to be served. Recital 9 establishes that the competent author- ly in the same sense given by Framework Decision 2008/909/ ity of the issuing State has to take into account the place of JHA. Unfortunately, most of the articles of the Mutual Rec- residence of the sentenced person’s family, together with any ognition Act are not as accurate as Art. 67. As an example of linguistic, cultural, social, and economic links to the executing this inappropriate transposition, Art. 68, which regulates the State. The mere place of residence of the sentenced person is consultation about the transmission of a certificate, merely es- not included among the criteria that the issuing authority must tablishes that the consultation will be sent to the State where consider. Likewise, Art. 4 of Framework Decision 2008/909/ the sentenced person lives, regardless of whether his or her JHA – establishing the criteria for forwarding a judgement and roots are in any other Member State. This is the case as well a certificate to another Member State – refers to the Member of Art. 71, which stipulates the criteria for forwarding a certifi- State “of nationality of the sentenced person in where she or he cate: the provision only refers to the Member State of “usual lives” as the most suitable criterion. But the proper meaning of residence.” And another unfortunate example can be found in the expression “Member State […] where she or he lives” can Art. 91, which transposes the content of Art. 25 of Framework be found in Recital 17, which establishes that “this indicates Decision 2008/909/JHA, referring to the enforcement of a

42 | eucrim 1 / 2020 Mutual Recognition of Judgements in Criminal Matters criminal sentence as a consequence of refusing an EAW on the however, the consent of the sentenced person to the transfer is basis of Arts. 4(6) and 5(3) of the Framework Decision on the the general rule. De Hoyos points out that Art. 67 of the Mutu- European Arrest Warrant; Art. 91 does not even include “resi- al Recognition Act transposing Art. 6(2) Framework Decision dents” but instead refers to the nationality of the sentenced 2008/909/JHA includes many common exceptions to the con- person.6 Of course, in this case and despite its wording, Art. 91 sent, which implies that the rule specifying mandatory consent must be interpreted in conformity with Art. 25 of Framework on the part of the sentenced person can be easily undermined.12 Decision 2008/909/JHA in connection with Arts. 4(3) and 5(3) It must, however, be taken into account that Art. 67(3) of the of Framework Decision 2002/584/JHA on the European Ar- Mutual Recognition Act establishes the right of the sentenced rest Warrant; this means that, if the European Arrest Warrant person to state his or her opinion about the transfer, either is refused, a sentenced person who has links with Spain (even orally or in writing (in accordance with Art. 6(3) of Frame- though he or she is a national of another Member State, or work Decision 2008/909/JHA). Even when the consent of the lives or has his/her residence in another Member State), shall sentenced person is not required, the opinion of the sentenced serve the sentence of imprisonment in Spain in order to avoid person may be decisive, since it can provide valuable infor- impunity.7 mation for assessing the achievement of the purpose of social rehabilitation.13 Reception of the sentenced person’s statement by the judicial authority is mandatory, and the Spanish court III. Spain as Issuing State: Requirements must strictly observe legal requirements in order to guaran- of the Judgement Forwarded from Spain tee that the sentenced person’s opinion has been duly obtained (i.e., on an informed basis; if necessary, with the support of an Arts. 66 to 76 of the Mutual Recognition Act regulate the situa- interpreter, etc.). tion when Spain is the issuing State. The provisions, inter alia, deal with the consent of the sentenced person, his/her trans- fer, and the procedural requirements to be met by the compe- 2. Absence of pending criminal proceedings tent Spanish court. The opinion of the sentenced person is a particularly sensitive issue, since it is mandatory to request it The Spanish issuing authority (usually the Prison Supervision (not to be confused with the consent of the sentenced person). Court) has to make sure that there is not another criminal con- Spain also included a provision on the absence of pending viction under appeal against the same person before any other criminal proceedings that does not belong to the Framework criminal court. The court can obtain this information by means Decision 2008/909/JHA. These two issues will be analysed in of the SIRAJ (a register for the support of the administration more detail in the following. of justice). Ruiz Yamuza points out that this requirement is not found in Framework Decision 2008/909/JHA, but was added by the Spanish legislator.14 This provision also triggers some 1. The sentenced person’s consent to the transfer legal questions. Some authors argue, for instance, that this rule includes not only conviction judgements under appeal Art. 66 of the Mutual Recognition Act contains the criteria for but also pending proceedings, since the purpose of the provi- forwarding a criminal judgement from Spain, whose issuing sion, on the one hand, is to enable the defendant to attend the authority is the Prison Supervision Court (or Juvenile Court in court hearings in pending criminal proceedings. On the other, case of convicted minors).8 The essential element of Art. 66 is its purpose is to reach a level of certainty about convictions regulation of the sentenced person’s consent to the transfer.9 against one person, given that – since the competence for all The sentenced person must give his/her consent with legal as- the pending convictions lies with one single court (the one that sistance and with the services of an interpreter (if the person first received the petition about the transfer of the sentence) – does not understand Spanish). In practice, it seems advisable contradictory decisions on the transfer can be avoided.15 that the sentenced person become acquainted with the circum- stances of the enforcement in the executing State so that he/she can take an informed decision, although neither Framework IV. Spain as Executing State: Consequences Decision 2008/909/JHA nor the Mutual Recognition Act re- of Application of the Spanish Law to the Enforcement quire provision of this information.10 and Adaptation of the Sentence

Nonetheless, the provision leads to several legal questions. International law on the transfer of sentenced persons regu- Fernández Prado concludes that consent cannot be with- larly provides two systems if it comes to the enforcement of a drawn, but he makes an exception for cases in which a change sentence handed down abroad in the requested state: either the in circumstances may justify a new decision.11 Apparently, requested state (in terms of Union law: the executing State)

eucrim 1 / 2020 | 43 New Challenges for Judicial Cooperation in Spain continues the enforcement as it was established in the sen- a de facto adaptation, since there is actually a change in the tence handed down in the requesting state (namely the issuing enforcement of the sentence pursuant to the Spanish criminal State) or it adapts the sentence as if the sentence had been enforcement legislation.19 delivered under the national law of the requested state. Frame- work Decision 2008/909/JHA has, as a rule, chosen the first The Spanish enforcement law in criminal matters may also option.16 However, a sentence to deprivation of liberty may hinder the correct application of Art. 17(2) of Framework De- require some adjustments, since the law governing its enforce- cision 2008/909/JHA. The problem lies in the various juris- ment is that of the executing State. The Framework Decision dictional competences and is as follows: The competent au- allows adaptation in two scenarios, i.e., either if the sentence thority for the execution of transfer requests in Spain is the is incompatible with the law of the executing State in terms of Central Examining Magistrate’s Court located in Madrid. It its duration (Art. 8(2)) or if the sentence is incompatible with is responsible for the execution of sentences for the entire na- the law of the executing State in terms of its nature (Art. 8(3)). tional territory. According to Art. 17(2) of Framework Deci- Spain implemented these provisions in Art. 83 of the Mutual sion 2008/909/JHA, the competent authority of the executing Recognition Act. State may be requested to inform the issuing State about the possible provisions on early or conditional release. Depend- In the first scenario, the Spanish executing authority is allowed ing on the answer given, the issuing State is allowed to accept to adapt the sentence if the duration of deprivation of liberty these provisions or withdraw the certificate. This provision exceeds the maximum established under the Spanish Criminal was transposed to Art. 78 of the Mutual Recognition Act with Code. According to Art. 83(1) of the Mutual Recognition Act, a similar wording. As mentioned above, however, criminal en- the judge may alter the conviction to the maximum for the forcement is entrusted to the Prison Supervision Courts.20 At same type of crime in these cases. The second scenario for the moment at which the executing decision is taken by the adaptation of the sentence – the incompatibility of the pun- Central Examining Magistrate’s Court, the judge may not yet ishment included in the criminal sentence in terms of its na- be aware of the prison regime that is to be applied to the sen- ture – allows the Spanish court to adapt the sentence by taking tenced person in a Spanish prison. This means that the judge into account the crime committed. When applying the 1983 at the Central Examining Magistrate’s Court might not know Council of Europe Convention on the Transfer of Sentenced about the possibility of an early release, because this decision Persons, the Spanish Supreme Court warned about the risk of is taken under the jurisdiction of the Prison Supervision Court. broad interpretation of these two exceptions, as it could change Therefore, at this juncture, the Central Examining Magistrate’s the current system (continuing the enforcement) and open the Court cannot provide any accurate information to the issuing door for a change in the content of the criminal judgement in State in accordance with Framework Decision 2008/909/JHA. practice.17 The same statement can be applied towards correct In my opinion, in order to avoid this paradoxical situation, the interpretation of the Mutual Recognition Act as far as the EU Spanish Central Examining Magistrate’s Courts should inform scheme is concerned. the issuing State about the possible consequences of applica- tion of the General Prison Act (see above). Other problems concerning a possible change in the content of the sentence may arise under Spanish law regarding the ap- plication of the General Prison Act, even when the sentence V. Conclusions has not been adapted. According to the Spanish regulation on criminal enforcement, each case of a person sent to prison is Transposition of EU criminal law instruments is usually done analysed by a committee and, as a consequence, each inmate is quite literally in Spain, which avoids misinterpretations. Nev- classified according to a three-degree system, the first degree ertheless, the Spanish legislator has not always achieved a being for the most dangerous inmates. Convicted persons who successful transposition of Framework Decision 2008/909/ are classified as third-degree inmates are closest to their re- JHA on EU mutual recognition of prison sentences and pris- lease, so that they may enjoy longer leaves and the possibility oner transfers. Regarding the regulation of this mutual rec- of an earlier release (not only according to the conviction of ognition scheme, there are mismatches between the wording the sentence but also to their behaviour in prison). As a con- of the Framework Decision and the Mutual Recognition Act sequence of the decision of the committee, a sentenced person that transposes Union law in Spain. This particularly concerns transferred to Spain for the enforcement of a foreign crimi- the links of the sentenced person with the executing State. nal sentence, may enjoy an open prison regime from the very Framework Decision 2008/909/JHA stresses the importance outset considering the Spanish prison system of degrees.18 Al- of taking into account various criteria when linking the sen- though this release is not the result of a legal adaptation of tenced person with the executing State, e.g., family, work, or the sentence by the executing authority, it can be described as linguistic ties (among others), considering that the place where

44 | eucrim 1 / 2020 Mutual Recognition of Judgements in Criminal Matters the person lives is the place where he/she has these roots. The If we look at Spain as executing State, some problems may Spanish Mutual Recognition Act does not specify all these cir- arise as a consequence of the peculiarities of Spanish peni- cumstances, since most of its provisions merely refer to the tentiary law. A committee analyses the circumstances of the place of residence. Therefore, there are several conceivable convicted person at the moment he/she enters prison, and the issues where interpretation of the Spanish regulation in con- decision of this committee may lead to the application of an formity with European legislation is necessary. open prison regime. This may result in a de facto adaptation of the foreign sentence. In addition, this scheme may lead to Interestingly, the Mutual Recognition Act adds a require- another problem: when the issuing State asks for information ment that is not found in Framework Decision 2008/909/JHA. about the possibilities of an early or conditional release, it is Whenever Spain is the issuing State, the court must inform impossible for the Spanish competent court, which decides on itself about any other criminal proceedings in which a judge- this request, to know the decision that will be taken by the ment of conviction is under appeal against the person to be committee. In practice, the court can only inform the issuing transferred. The scope of this rule is debated in literature, how- State of the possible consequences of the application of Span- ever, since it intends to avoid contradictions about different ish penitentiary law. convictions concerning the same person.

* This article is part of the Research Project “The evolution of the Euro- pean judicial area in civil and criminal matters: its influence on the Spanish process (CAJI) – PGC2018-094209-B-I00)”. The author thanks the Spanish Prof. Dr. Regina Garcimartín Montero Ministry of Science, Innovation and Universities for its financial support of the project. Associate Professor of Procedural Law, 1 Ley 23/2014, de 20 de noviembre, de reconocimiento mutuo de resolu- University of Saragossa ciones penales en la Unión Europea (BOE A-2014-12029). 2 See 2.3.2 of the Handbook on the transfer of sentenced persons and custodial sentences in the European Union, O.J. C 403, 29.11.2019, 2 (p. 12). 3 Para. 54 of the judgement states: “it is for the executing judicial author- ity to make an overall assessment of various objective factors characteris- ing the situation of that person, including, in particular, the length, nature and conditions of his presence and the family and economic connections which that person has with the executing Member State”. In the case, cuando ha sido impuesta por un tribunal extranjero. Criterio del Tribunal Poland had issued an EAW against Polish national Mr Kozłowski, who Supremo y su encaje dentro del nuevo marco legal europeo”, (2019) “lived predominantly in Germany” at the moment of his arrest and one year Revista de Derecho Migratorio y Extranjería, 11; and F.-G. Ruiz Yamuza, prior. He occasionally had some jobs in Germany, but he had no family in “Comentario …” op. cit. (n. 4), p. 13. the country and barely spoke German; on the other hand, he had grown 8 The competence of the Prison Supervision Courts relates to all matters up in Poland and worked there until two years before moving to Germany. of imprisonment. This competence is also justified in cases of internation- Mr Kozłowski did not consent to his surrender to Poland. The ECJ upheld al transfer, because any petition for transfer will not suspend imprison- the arguments of the referring German court with the aforementioned ment once the sentence has been delivered and the defendant convicted argumentation. to deprivation of liberty. There is at least one Prison Supervision Court in 4 F.-G. Ruiz Yamuza, “Comentario del primer supuesto práctico de each province and their competences (according to Art. 94 of the Organic transmisión de una sentencia condenatoria por un tribunal español, en Law on the judiciary) are “matters concerning the enforcement of terms of aplicación de la Ley 23/2014, en relación con la Decisión Marco 2008/909/ imprisonment and security measures, the issue and enforcement of instru- JAI sobre reconocimiento mutuo de sentencias que imponen penas u ments for the mutual recognition of criminal rulings within the European otras medidas privativas de libertad”, (2015) Revista General de Derecho Union that are assigned to them by law, judicial review of the disciplinary Europeo, 13, 25. power of prison authorities and the protection of the rights and benefits of 5 See Art. 6 of Framework Decision 2008/909 for the system when the prison inmates.” consent of the sentenced person is not required. 9 Art. 66 implements Art. 6 together with Art. 4(1) of Framework Decision 6 M. Fernández Prado submits that the Spanish legislator forgot to in- 2008/909/JHA. clude the residence of the sentenced person in Art. 91; in strict terms, this 10 M. De Hoyos Sancho, op. cit. (n. 7), p. 116. omission would also affect the proper meaning of the State of residence or 11 M. Fernández Prado, op. cit. (n. 6), p. 135. State where the sentenced person lives. See M. Fernández Prado, “Cues- 12 M. De Hoyos Sancho, op. cit. (n. 7), p. 116. tiones prácticas relativas al reconocimiento de resoluciones que imponen 13 F.-G. Ruiz Yamuza (op. cit. (n. 4), p. 17) gives the example of a sen- penas o medidas privativas de libertad”, in: C. Arangüena Fanego (coord.), tenced person who apparently has family links in the executing State but Reconocimiento mutuo de resoluciones penales en la Unión Europea, is nevertheless in a relationship in the issuing State or in a third State. Aranzadi, Cizur Menor, 2015, p. 131. Or perhaps there is an upcoming move on the part of his family that may 7 Spanish legal scholars recognize the lack of clarity of the Spanish change the State where he has family links in the short term. text and agree in the need to interpret the Mutual Recognition Act in 14 F.-G. Ruiz Yamuza, op. cit. (n.4), p. 33. conformity with Framework Decision 2008/909/JHA. See M. De Hoyos 15 M. Fernández Prado, op. cit. (n. 6), p. 133. Sancho, “El reconocimiento mutuo de resoluciones por las que se 16 J. Nistal Burón, op. cit. (n. 7), p. 3. impone una pena o medida privativa de libertad: análisis normativo”, 17 STS 820/2013, 17 October 2013. in: C. Arangüena Fanego (coord.) Reconocimiento mutuo de resoluciones 18 J. Nistal Burón, op. cit. (n. 7), p. 10. penales en la Unión Europea, Aranzadi, Cizur Menor, 2015, p. 109; J. Nistal 19 J. Nistal Burón, op. cit. (n. 7), p. 11. Burón, “La «adaptación» de una condena para su cumplimiento en España 20 See supra n. 8.

eucrim 1 / 2020 | 45 New Challenges for Judicial Cooperation in Spain

The Proposal on Electronic Evidence in the European Union

Prof. Dr. Ángel Tinoco-Pastrana*

This article examines the origin, foundations, and main features of the proposal of the European Union to facilitate cross-bor- der access to electronic evidence, which was presented by the European Commission in April 2018. The creation of advanced solutions for the transnational gathering of electronic evidence in the EU is a very current and important issue, and is comple- mented with other actions carried out at an international level. Respect for the principle of proportionality must be particularly relevant in order to achieve the proper functioning of the new scheme. The main idea is that certificates of judicial orders will be transmitted directly to the legal representatives of online service providers. These new instruments of judicial cooperation (consisting of a Regulation and a Directive) aim at facilitating and accelerating judicial authorities’ access to data in criminal investigations in order to assist in the fight against crime and terrorism. They should reduce response times in comparison to the instruments currently in place; service providers will be obliged to respond within ten days or, in urgent cases, within six hours. The proposal comes in reaction to the acute need to provide authorities with cutting-edge instruments for obtaining cross-border access to data.

I. Introduction – Setting the Scene with … service providers that are active on European terri- tory, in order to enhance compliance with EU and Member The creation of an instrument for transnational access to elec- States’ legislation and direct contacts with law enforcement tronic evidence in the EU is a pressing issue, given its rel- authorities.” It was further announced that the Council meet- evance to the fight against terrorism, cybercrime, and trans- ing in June 2016 would identify concrete measures to address national crime in its entirety. The Area of Freedom, Security this complex matter.3 Subsequently, on 9 June 2016, the Jus- and Justice (AFSJ) needs to be able to vigorously respond to tice and Home Affairs Council adopted the “Conclusions on these forms of crime; establishing security is one of top policy the improvement of criminal justice in cyberspace and on the priorities of the EU and it is closely linked to the European European Judicial Network on Cybercrime,” which expressly Research Area, in which security concerns are of paramount highlighted the increased importance of electronic evidence in importance.1 criminal proceedings, especially with regard to terrorism.4 The European Council further pushed for adoption of EU legisla- In April 2018, the European Commission proposed new rules tion on e-evidence. At its meeting of 23 June 2017,5 the Coun- enabling police and judicial authorities to obtain electronic cil emphasized that cross-border access to electronic evidence evidence more quickly and more easily. They were included was deemed fundamentally important in the fight against ter- in the “Proposal for a Regulation of the European Parliament rorism. On 20 November 2017, the European Council asked and of the Council on European Production and Preservation the Commission to make a legislative proposal in early 2018.6 Orders for electronic evidence in criminal matters” and the ac- companying “Directive of the European Parliament and of the When issuing the legislative proposal on 17 April 2018, the Council laying down harmonised rules on the appointment of European Commission stressed the growing importance of legal representatives for the purpose of gathering evidence in electronic evidence for criminal proceedings, the fact that criminal proceedings.”2 cross-border requests for such evidence currently predomi- nate in criminal investigations, and that criminals and ter- The fight against terrorism is the fundamental issue that drove rorists cannot be allowed to exploit modern communication the proposal. The background of the proposal dates back to technologies to conceal their activities and evade justice. It the year 2016 and the terrorist attacks in Brussels of 22 March was also highlighted that the authorities continue to work with 2016. The “Joint Declaration of EU Ministers for Justice and complicated methods and that, although judicial cooperation Home Affairs Ministers and Representatives of EU Institu- and mutual assistance are necessary, the process is currently tions” two days after the attacks stressed the need to “find too slow and complex, enabling criminals to resort to state- ways, as a matter of priority, to secure and obtain more quickly of-the-art technologies. Authorities need to be equipped with and effectively digital evidence, by intensifying cooperation 21st century techniques, given that approximately two thirds

46 | eucrim 1 / 2020 The Proposal on Electronic Evidence of electronic evidence is located in another State (both within II. The European Production Order and the European and outside the EU), a fact that hinders both the investigation Preservation Order and the prosecution.7 The European production order (EPdO) and the European The EU is not the only actor striving for new legislative meas- preservation order (EPsO) allow the judicial authority of a ures in the area of electronic evidence. Terrorism is a global Member State, the issuing State, to directly order a provider of- phenomenon, and access to electronic evidence also takes on fering the service in the EU to hand over or store the electronic a global dimension; therefore, the measures are not limited to evidence. The EPdO implies an extraordinary simplification the European level. The conventional judicial cooperation is of the procedure, with a significant reduction in deadlines for important in the relationship with third States, mainly with the delivery of the evidence, i.e., ten days or – in emergency situ- USA, where a great part of the electronic data is circulated ations – six hours (Art. 9(1) and (2) of the text in the version and/or stored. At the Justice and Home Affairs Council in June of the Council’s general approach,12 which will be taken as 2018, the issue of transnational access to electronic evidence a reference in this article). This considerably accelerates the was once again addressed. Consensus was reached on continu- obtainment of information compared to 120 days for the Eu- ing contacts and negotiations with the USA,8 given the en- ropean Investigation Order (EIO) and 10 months in the area of actment of the CLOUD Act.9 On 6 June 2019, the Council (conventional) mutual legal assistance.13 gave two mandates to the Commission for the negotiation of international agreements on electronic evidence, which incor- These orders will be governed by an EU Regulation, which porated relevant guarantees as regards privacy and procedural underscores that the EU is not willing to let effective use of rights: (1) a mandate to negotiate an agreement with the US these instruments be hampered by late transposition or even to facilitate access to electronic evidence, taking into consid- non-transposition on the part of the Member States – risks that eration conflicts of law and common rules for the direct and exist within the scope of EU Directives, as recently happened reciprocal transfer of evidence, and (2) a mandate to enter into with Directive 2014/41/EU on the European Investigation Or- negotiations with the Council of Europe on a second Addi- der. The EU is setting a clear direction, as this legislative tech- tional Protocol to the Budapest Convention on Cybercrime.10 nique was also instrumental in Regulation (EU) 2018/1805 on freezing and confiscation orders and in the creation of the The connection between these international developments and European Public Prosecutor’s Office through Regulation (EU) the EU proposal on e-evidence builds on the fact that these 2017/1939. For the appointment of the legal representatives measures pursue facilitating access to electronic evidence of service providers, however, who are essential for the ex- when the evidence circulates or is stored outside the EU. The ecution of orders, a Directive with an 18-month transposition aim of the aforementioned agreements is to simplify and grant deadline has been chosen.14 This could be an obstacle, since greater effectiveness to the mutual legal assistance regime by legal representatives play a fundamental role in the collection reducing the deadlines for access to electronic evidence and and preservation of electronic evidence. allowing for direct cooperation with service providers. The Council highlights the need for these agreements to coexist Significant differences can be found between the EPdO/EPsO with the Regulation and the Directive on electronic evidence and mutual recognition instruments in place. The certificates currently being processed in the EU.11 Therefore, the agree- for orders are to be notified directly to the service provider ments being negotiated by the European Commission would in the executing State, not to an authority there. The inter- additionally boost a more homogeneous international regula- vention of the executing authority is limited to one-off cases, tion in this area. such as notifications when the EPsO refers to data on persons not residing in its territory (Art. 7a (1) of the Council’s gen- The following two sections focus on an analysis of the pro- eral approach), the withdrawal of immunities or privileges posed European Production and Preservation Orders. This in- (Art. 7a (3) of the Council’s general approach), and the trans- cludes a description of their main features, the legislative tech- fer of orders and certificates to the executing authority in the nique being used for the establishment of the new orders, and event that the addressee fails to comply without giving reasons the most relevant recent aspects that the plans entail in the field accepted by the issuing authority, in which case the executing of judicial cooperation (II.). Furthermore, the importance of authority will decide on recognition no later than five working the principle of proportionality is highlighted, both as regards days (Art. 14 of the Council’s general approach). the EU instrument as well as the instruments discussed at the international level (III.). It will be stressed that application of European Production and Preservation Orders are certainly not the proportionality principle will lead to a major improvement an instrument in which an authority in the executing State rec- in this specific field of judicial cooperation. ognises the order issued by the authority in the issuing State,

eucrim 1 / 2020 | 47 New Challenges for Judicial Cooperation in Spain without requiring any further formality, and executes it in the jectives, taking into account the impact on the fundamental same way and under the same circumstances as if it had been rights of the person whose data are being requested. Personal ordered in the executing State – unlike the main principles for data obtained through e-evidence may be processed only when instruments of mutual recognition in criminal matters. Hence, necessary and proportionate for the purposes of prevention, in- the EPdO and the EPsO cannot as such be categorised as mu- vestigation, detection, and prosecution of crimes; the applica- tual recognition instruments,15 but are instead instruments of tion of criminal sanctions; and exercise of the right of defense judicial cooperation in criminal matters that require a “high (Recital 57 of the Council’s general approach). Thus, the prin- level of mutual trust” for their proper functioning (Recital 11 ciple of necessity – despite having data protection implications of the Council’s general approach). There is also no reference – is used in the context of EPdO and EPsO primarily as part of to the classic list of 32 offences for which the double crimi- the principle of proportionality (proportionality stricto sensu). nality check – a common element in the mutual recognition instruments – will not be carried out. In other words, the EU’s On many occasions, the proposal for a Regulation mentions legislative approach is not an instrument of mutual recogni- the principle of proportionality and the impact on fundamental tion per se, but a new type of cooperation instrument based on rights. Manifestations of the principle of proportionality are advanced form of mutual trust. the guarantees provided for and specified in the provision on the EPdO in conjunction with traffic, transaction, and content In terms of the substantive contents of the proposal, the fol- data, since they are limited to offences involving at least a lowing aspects are worth highlighting: Orders should be nec- three-year maximum sentence (with the exception of cyber- essary and proportionate, and they shall be issued in accord- crime- and terrorism-related offences).20 While orders must in- ance with the principle of equivalence; they are restricted to clude justification of necessity and proportionality according criminal proceedings, but both orders can be issued for all to the purpose of the particular proceedings, certificates will criminal offences and for most types of data stored, such as not include this information so as not to jeopardize investiga- subscriber data and access data, unless they relate to traffic tions (Arts. 5, 6, and 8 of the Council’s general approach). data, transactions, and content. With regard to the latter data, Respect for the principle of proportionality is also included in and only specifically for the EPdO, the threshold is set such the system of confidentiality and providing information to the that the abstract penalty for the facts is at least three years’ user (Art. 11 of the Council’s general approach) and in the sys- imprisonment16 or that specific offences be related to or com- tem of sanctions for service providers (Art. 13 of the Council’s mitted through cyberspace and terrorist offences. In the case general approach). of orders issued for the enforcement of a custodial sentence or a security measure involving deprivation of liberty, the dura- If we apply the proportionality principle, there is a need for tion of the deprivation of liberty must be at least four months detailed regulation. It should take account of the penalty limits (Arts. 5 and 6 of the Council’s general approach). and other specific requirements to avoid the use of orders for minor offences, as in the case of other mutual recognition in- struments, e.g., the EIO.21 The effective application of the prin- III. The Issue of Proportionality ciple of proportionality could be at risk if orders are allowed for all types of criminal offences. In particular, the exception With regard to the application of the principle of proportional- made to cybercrime-related offences involving the obtainment ity, I believe that it should have a fundamental position and of traffic, transaction, and content data through EPdOs is too function, constituting the backbone of the whole system in the broad. Therefore, it follows that penalty limits and specific same way as the principle of necessity. According to the pro- requirements fostering proportionality no longer constitute posed Regulation, these principles will be applied in accord- a concept with imprecise boundaries that allows for judicial ance with the CFR.17 The fundamental rights of the subjects discretion, as already pointed out in the legal literature.22 The concerned shall be preserved, and the remedies guaranteed.18 application of the principle of proportionality would help in- The issuing authority will be responsible for ensuring the com- tegrate the element of justice and promote the fairness of the pliance of these principles19 (Recitals 12, 13, 24 and 46 of the entire system. This is necessary because there is an urgent Council’s general approach). In the context of the e-evidence need to reconcile the preservation of security within the AFSJ proposal, the application of the principles of proportionality – which the new legislation on e-evidence is designed for – and necessity requires an assessment in each individual case with the elements of freedom and justice in order to prevent (Recital 24 of the Council’s general approach). Given the inva- these commitments from being deteriorated.23 As the creation sive nature of the measure (Recitals 29 and 43 of the Council’s of an instrument for the transnational collection of electronic general approach), this implies assessing whether the order is evidence is considered urgent, it is all the more necessary that limited to what is strictly necessary in order to achieve its ob- both justice and freedom be put to good use in the AFSJ.

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Reconciliation between security and justice is also a premise Recommendation for a Council Decision” to negotiate on a at the Council of Europe level. When interpreting the Euro- Second Additional Protocol to the Budapest Convention on pean Convention on Human Rights as regards access to data Cybercrime;27 it establishes that access to data shall be neces- and the exchange of information between Member States for sary and proportionate.28 the purpose of combating transnational crime and terrorism, the ECtHR, on the one hand, recognises such access and ex- changes as essential, due to the sophisticated methods of data IV. Conclusions evasion by criminal networks. On the other hand, the ECtHR defines the limits and proportionality of electronic surveil- The transnational gathering of evidence remains a pending lance. Given the difficulties States have in combating these issue in the EU, which has largely shifted to electronic evi- forms of crime, the Court accepts the legitimate interest of dence. The link to the agreements that the EU is negotiating Member States to take a firm position, but it also stresses that with the USA on electronic evidence is of particular interest. both access to and transfer of data must respect the principle The agreement might bring civil law and common law clos- of proportionality.24 er together, which has been a burning issue in studies of the criminal procedure model for decades, e.g., as regards the It is also important to take these considerations seriously if it question of whether common criteria can be established for comes to the above-mentioned establishment of cooperation rules on the exclusion of evidence. It was argued in this arti- schemes on e-evidence at the international level. Indeed, they cle that the principle of proportionality must play an essen- are reflected in the “Addendum to the Recommendation for tial role, including the situation if third States are involved a Council Decision” authorizing the opening of negotiations in the gathering of electronic evidence. It was also stressed with a view towards concluding an agreement with the USA that the EU proposal on e-evidence is not an instrument of on cross-border access to e-evidence (see also I.).25 This Ad- mutual recognition per se, since the envisaged orders are dendum highlights the importance of respect for the principle not recognised and executed by judicial authorities in an- of proportionality and due process. It stresses the relevance of other EU Member State, but by representatives of (private) the principles of necessity and proportionality when differen- service providers. This new instrument therefore highlights tiating between the various categories of data, and it addition- the evolution of judicial cooperation in the EU. One should ally advocates the application of these principles in the field of not lose sight of the necessary links that exist outside the privacy and data protection.26 The relevance of the principle EU, given the global dimension of the new and more serious of proportionality is also expressed in the “Addendum to the forms of crime.

* This article is part of the research project: “La evolución del espacio judicial europeo en materia civil y penal: su influencia en el proceso español”, R+D Project, PGC2018-094209-B-I00, supported by the Spanish Prof. Dr. Ángel Tinoco-Pastrana Ministry of Science, Innovation and Universities. It is also the result of a research stay the author completed as a visiting fellow at the European Associate Professor of Procedural Law, University Institute (Florence, Italy) in 2018, financed by the University of University of Seville Seville’s VI Research Plan. https://orcid.org/0000-0002-6622-9030 1 See “Proposal for a Decision of the Council on establishing the specific programme implementing Horizon Europe − the Framework Programme for Research and Innovation (2021–2027) – Partial General Approach”, Council doc. 8550/19 of 15 April 2019. The “Civil Security for Society” cluster has a leading role in the new programme. The fundamental premise is a vision of Europe that protects, empowers, and ensures security. 2 COM(2018) 225 final and COM(2018) 226 final. For an analysis of the proposals, see also S. Tosza, “The European Commissions’s Proposal on 8 M. Jimeno Bulnes, “Capítulo XXXV. La prueba transfronteriza y su in- Cross-Border Access to E-Evidence“, (2018) eucrim, 212–219. corporación al proceso penal español”, in: M. I. González Cano (ed.), Orden 3 Cf. point 6 of the Joint Declaration, available at: , accessed 20 May 2020. the fundamental clues to the legislative proposal, given that it receives 4 The conclusions are available at: , accessed 20 May 2020. “leitmotiv” of the proposal. 5 Cf. , accessed 20 May 2020. Act”, (2018) eucrim, 220–225. 6 See , pdf>, accessed 20 May 2020. accessed 20 May 2020. 7 In this regard, , accessed 20 May 2020. 2019/06/06/council-gives-mandate-to-commission-to-negotiate-interna-

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tional-agreements-on-e-evidence-in-criminal-matters/>, accesed clearly regulated, necessary, and proportionate to the purpose and must 20 May 2020 preserve the essence of the limited fundamental rights. 12 Cf. Council doc. 15292/18/19 of 12 December 2018; a version of the 18 R.M. Geraci, “La circulazione transfrontaliera delle prove digitali in general approach of December 2018 supplemented by respective annexes UE: La proposta di Regolamento e-evidence”, (2019) Cassazione penale, was published on 11 June 2019, Council doc. 10206/19. 3, 1340, 1353. The execution of the orders affects a plurality of subjects, 13 Factsheet e-evidence, , accessed 20 May 2020, and Arts. 1 and 2 of sibly, third States. the general approach to Regulation of the European Parliament and of the 19 M. Stefan and G. González Fuster, “Cross-border Access to Electronic Council on European production and preservation orders for electronic Data through Judicial Cooperation in Criminal Matters. State of the art evidence in criminal matters, Council doc. 10206/19 (11 June 2019) agreed and latest developments in the EU and the US”, (2018) 7, CEPS Papers in by the Council (Justice and Home Affairs) at its meeting on 6 June2019. Liberty and Security in Europe, accessed 20 May 2020, 1, 30. It is particularly problematic 14 Abs. 7 of the Proposal for a Directive (as agreed in the general ap- that the offences to be affected by the proposed Regulation have not been proach of the Council, Council doc. 6946/19 of 28 February 2019, adopted precisely determined, as there is no verification of legality, necessity, and on 8 March 2019). proportionality by the judicial authorities of the executing State. 15 As regards the European Investigation Order, there have even been 20 Recitals 29,31,32 of the Council’s general approach, op. cit. (n. 12). questions as to whether this is really a mutual recognition instrument in 21 See L. Bachmaier, “Prueba transnacional penal en Europa: la Directiva the strict sense of the word; it seems that judicial cooperation in criminal 2014/41 relativa a la orden europea de investigación”, (2015) 36, Revista matters needs to explore a reinterpretation of the mutual recognition General de Derecho europeo, 15–19, noted this risk in the EIO, as minor principle and innovation as regards the forms of cooperation. offences are not excluded from its scope. 16 It is precisely the establishment of a minimum penalty limit with 22 On this matter, T.I. Harbo, “Introducing procedural proportionality respect to access to data that is relevant for the application of the pro- review in European Law”, (2017) 30, Leiden Journal of International Law, portionality test. This is reflected in the ECJ judgement of 2 October 2018, 25, 25–26. case C-207/16, Ministerio Fiscal. In its Opinion on the seriousness of the 23 See E. Herlin-Karnell, “The domination of security and the promise of offence and the principle of proportionality, the Advocate General noted justice: on justification and proportionality in Europe’s ‘Area of Freedom, that it is impossible to determine the proportionality solely on the basis of Security and Justice’”, (2017) 8 (1) Transnational Legal Theory, 79, 83. the abstract penalty, given the differences between the Member States. 24 ECtHR, 13 September 2018, Big Brother Watch and others v. the United The new Regulation would therefore clarify this point. Kingdom, Application. nos. 58170/13, 62322/14 and 24960/15. 17 As already noted by C. Cocq and F. Galli, “The Use of Surveillance 25 Cf. , accessed 20 May 2020. Crime”, (2015), 41, EUI Working Papers, Department of Law, , accessed 20 May 2020, 1, p. 48, with 27 Cf. , accessed 20 May 2020. affects the rights to privacy and the protection of personal data, funda- 28 See in particular I.b) (Objectives) and II.4 (Stronger safeguards for mental rights under Arts. 7 and 8 CFR. Any limitation or intrusion must be existing practices of transborder access to data).

Harmonization of Procedural Safeguards of Suspected and Accused Persons State of the Matter in Spain

Prof. Dr. Félix Valbuena González*

After giving a brief overview of the major developments in the harmonization of procedural safeguards for suspected and ac- cused persons in the European Union, this article focuses on the legal reforms that were necessary to implement four of the six adopted EU Directives on procedural safeguards into Spanish national law. This concerns the transposition of the Directives on interpretation/translation, on information, on access to a lawyer and communication with third parties, and finally on legal aid. The main aspects of the transpositions into the Spanish legal order are explained and deviations from the requirements of the Directives pointed out. Pending developmental issues, the article enables the reader to reflect the true status of the suspect and accused person in Spain after the reforms that were triggered by the EU acts.

50 | eucrim 1 / 2020 Harmonization of Procedural Safeguards

I. Brief Introduction into the Harmonisation tion in criminal proceedings,7 was delayed by a year and a half of Procedural Safeguards in the EU and took place through amendment of the Criminal Procedure Act (Ley de Enjuiciamiento Criminal, hereinafter LECrim) For more than fifteen years since the Commission presented its by means of the Organic Law 5/2015 of 27 April 2015.8 The Green Paper on procedural safeguards for suspects and defen- law introduced a new chapter into the LECrim entitled “On dants in criminal proceedings throughout the European Union the right to translation and interpretation,” (Arts. 123 to 127 in 2003,1 the European Union has been trying to harmonize LECrim). The new provisions recognize the rights enshrined this area in Member States. The 2003 Green Paper closely in the Directive as part of those enjoyed by the suspected per- analyzed the standards of procedural safeguards in the Euro- son (Art. 118 lit f) LECrim). Lastly, Art. 416.3 incorporates pean Union. It was confirmed that the cited safeguards already the professional secrecy of translators and interpreters; the norm enjoyed recognition at a legal level in most of the Member stipulates the dispensation from the obligation to testify as a wit- States; their application in practice was dissimilar, however, a ness in criminal proceedings as regards the facts with respect to fact that justified joint action. which the translators’/interpreters’ intervention referred to.

From then until now, we have witnessed two different stages. Prior to this reform, the right to interpretation was practically The first stage is represented by the 2004 Commission pro- limited to interrogation by police or judge, both in the pre- posal for a Council Framework Decision on certain proce- trial phase and during the oral trial. The right to translation dural rights in criminal proceedings throughout the European was restricted to informing the detainee of his or her rights by Union, which remained unsuccessful because Member States providing a form in the most common languages.9 With the could not agree on it in the Council.2 After the failure of this transposition of the Directive, the right to interpretation and proposal, a new course on the matter was initiated through the translation is enhanced; it is designed as a guarantee for those Resolution of the Council of 30 November 2009 on a Roadmap under investigation or for accused persons who do not under- for strengthening procedural rights of suspected or accused stand or speak Spanish or the official language (e.g. ,Catalan, persons in criminal proceedings.3 Unlike the 2004 proposal, Basque, etc.) in which the procedure is being carried out. The the Roadmap preferred to address each of the procedural guar- right also extends to persons with sensory disabilities. The as- antees separately, based on their importance and complexity, sistance of an interpreter is now guaranteed from the begin- with the pretext of granting each of them an added value.4 As a ning of the procedure; it is expressly mentioned that the as- result of this Roadmap, a total of six Directives were adopted. sistance must be guaranteed at the first interrogation by the However, the first three Directives were adopted in the period police, the courts, or the public prosecutor’s office10 as well 2010–2013; a second development period culminated in the pub- as in all court hearings. It also covers conversations that the lication of three other Directives in 2016. One aspect from the suspected or accused person may have with his or her lawyer. Roadmap has not taken up yet, namely that relating to detention Unlike the Directive – which does not specify the mode of and provisional detention (measure f) of the Roadmap). interpretation – the Criminal Procedure Act indicates its pref- erence for simultaneous and consecutive interpretation, both It should be noted that two of the three Directives adopted in of which require the physical presence of the interpreter next 2016 have yet to be transposed into the Spanish legal system: to the suspected or accused person. If this is not possible, the Directive 2016/343/EU of 9 March 2016 on the strengthening assistance of the interpreter may be provided by videoconfer- of certain aspects of the presumption of innocence and of the ence or any other means of communication. right to be present at trial in criminal proceedings,5 and Direc- tive 2016/800/EU of 11 May 2016, on procedural safeguards The translation of documents is limited to those that are es- for children who are suspects or accused persons in criminal sential to guaranteeing the right of defense of suspected and proceedings.6 The following sections of the article will deal accused persons who do not speak or understand the official with the most relevant aspects of the new regulation in Spain language (Spanish or Catalan, Basque, etc.), in which the pro- on safeguards for suspects or accused persons in criminal pro- ceedings are to be conducted. These documents include the ceedings, as a consequence of the already transposed four Di- order of imprisonment, the indictment, and the sentence − ul- rectives. timately, any other document according to the circumstances of the case if it is so declared by a judicial decision. In accord- ance with the Directive, Art. 123.4 LECrim requires the trans- II. Right to Translation and Interpretation lation to be carried out within a reasonable period of time and, to this effect, provides that the applicable procedural periods The transposition into Spanish law of Directive 2010/64/EU will be suspended as soon as the translation is agreed by the of 20 October 2010 on the right to interpretation and transla- judge, court, or public prosecutor’s office.

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Both interpretation and the translation are free of charge, The advances made with respect to the detainee are particular- meaning that expenses incurred from the exercise of such ly important, since the catalogue of rights about which he/she rights will be borne by the public administration, regardless of must be informed has been broadened, and the way in which the outcome of the proceedings. Unlike the right to interpreta- the information must be provided has been significantly im- tion, however, the right to translation can be waived by the proved. The catalogue was extended with two new rights: the suspect or accused person. The Directive requires the waiver right to access the material of the proceedings that are essen- to be duly registered (Art. 7), an aspect that the Spanish legis- tial to challenge the legality of the detention or deprivation of lator has not yet considered. liberty and the detainee’s right to communicate by telephone, without undue delay, with a third party of his or her own It should be noted that Spain has failed to meet the quality choice (Art. 520.2 d) and f) LECrim). Possibility to access requirements for interpretation and translation as set out by the the essential materials of the proceedings for the purpose of Directive. On the one hand, anyone who knows the required challenging the detention, which is of particular relevance,17 language is permitted to be involved as an interpreter, without the Spanish law deviates, however, from the Directive. While Spanish regulations requiring a degree, the justification being Art. 7(1) of the Directive requires Member States to surrender reasons of urgency that are not specified. On the other hand, any documents related to the specific file that are in the posses- Spain has failed to comply with the obligation to create an of- sion of the competent authorities and that are fundamental to ficial register of independent translators and interpreters who effectively challenging the legality of the detention to the de- are appropriately qualified.11 tainee or his/her lawyer, the Spanish law only gives the right to access these documents. Another element of the Spanish law is that the information must be provided in written form in III. Right to Information clear language, adapted to the addressee in view of his or her personal circumstances, such that the detainee can keep the The deadline for transposing Directive 2012/13/EU of 22 May letter of rights in his/her possession and consult it at any time 2012 on the right to information in criminal proceedings12 during the detention. into the national law of the Member States was 2 June 2014. The transposition into Spanish law took place late and succes- sively through different legal reforms. With a delay of almost IV. Right of Access to a Lawyer a year, the transposition began by means of the aforemen- tioned Organic Law 5/2015 of 27 April 2015 that modified the Within the set deadline, Spain transposed Directive 2013/48/ Criminal Procedure Act (LECrim).13 Organic Law 13/2015 of EU of 22 October 2013 “on the right of access to a lawyer 5 October 2015 continued the transposition six months later, in criminal proceedings and in European Arrest Warrant pro- modifying the Criminal Procedure Act anew.14 Ultimately, the ceedings and on the right to have a third party informed upon Act 13/2018 of 11 June 2018,15 was adopted with the aim of deprivation of liberty and to communicate with third persons guaranteeing the right to information to the requested person and with consular authorities while deprived of liberty.”18 The in the case of a European Arrest Warrant. transposition initially took place through the amendment of the Criminal Procedure Act by means of Organic Law 13/2015 of Prior to the reform, most of the safeguards related to the right 5 October 2015.19 However, Act 3/2018 of 11 June 2018 com- to information were already recognized in the Criminal Pro- pleted an aspect omitted at the time of transposition in 2015, cedure Act. However, transposition of Directive 2012/13 on namely the right to double defense of the requested person in the right to information in criminal proceedings in Spain led case of a European Arrest Warrant and surrender procedure; to improvements on the position of the suspected or accused i.e., the appointment of a lawyer in the issuing country for the person and, in particular, the subject deprived of liberty.16 person detained in Spain.20 With regard to the person under criminal investigation, there are two outstanding novelties: first, there is now the obli- Prior to the reform, the regulation of access to a lawyer in gation to update information on the facts the person was Spanish law was already quite extensive, since representation charged with and on the subject matter of the investigation in of the defendant by a lawyer was mandatory except for minor the face of any relevant change emerging during the investi- offences.21 If the suspect or accused does not appoint a lawyer, gative procedure by the Spanish investigative judge. Second, legal counsel is appointed ex officio. Some aspects of the right in order to safeguard the right of defense, the Spanish legisla- of access to a lawyer have been improved, however, following tor introduced the express recognition of the right to examine transposition of the EU instrument. This includes particularly any actions in due time and, in any case, prior to the taking of the introduction of a confidential interview between the lawyer a statement (Arts. 118.1 a) and b) LECrim). and the person under investigation, prior to the interrogation

52 | eucrim 1 / 2020 Harmonization of Procedural Safeguards of any authority, including the police authority (Art. 520.6 d) ence with them (Art. 520 g) LECrim). If the foreign detainee LECrim). This possibility had previously only been provided has two or more nationalities, he/she may choose which con- for in criminal proceedings against minors. The transposition sular authorities to contact and with whom to communicate also clarified the right by expressly stating that the presence of (Art. 520.3 LECrim). There is no exception to informing fam- the lawyer must be taken into account in all statements made ily members and consular authorities of the deprivation of lib- by the person under investigation as well as in proceedings erty and the place of custody, even in cases in which solitary involving identity parades, face-to-face confrontations, and confinement has been ordered; this is to ensure that no secret reconstruction of the scene of a crime. This aims at informing detention is carried out.23 the suspect of the consequences of giving or refusing consent in the face of such proceedings (Art. 520.6 b) and c) LECrim). Furthermore, the reform has been used as an opportunity to V. Right to Legal Aid improve conditions for the provision of ex officio legal repre- sentation by reducing the time available to the lawyer to go to The transposition into Spanish law of Directive (EU) the detention facility from eight to three hours from the mo- 2016/1919 of 26 October 2019 “on legal aid for suspects and ment he receives the order (Art. 520.5 LECrim). accused persons in criminal proceedings and for requested persons in European Arrest Warrant proceedings”,24 took place Other novelties include the requirements to be met for a waiv- by the deadline. Act 3/2018 of 11 June 2018 reformed the Act er of access to a lawyer in order to effectively handle those 1/1996 of 10 January 1996 on legal aid.25 Prior to the reform, cases in which the waiver is permitted, i.e., crimes against road Spanish law already offered broad coverage of free legal aid. safety. This means that clear and sufficient information must For this reason, and also because of its close relationship with be given to the person concerned in simple and understandable the right of access to a lawyer, transposition of the Directive language about the content of his/her right of access to a law- has been simple and rapid. It took also advantage of the legal yer and about the consequences of the waiver; the waiver can reform introduced in Spain on occasion of the transposition of be revoked at any time (Art. 520.8 LECrim). Finally, the con- the European Investigation Order.26 fidential nature of communications between the person under investigation and his/her lawyer is expressly recognized;22 an The main new aspect consists in the extension of free defense exception is made in the two following cases: solitary confine- counsel and representation when the intervention of a law- ment and when there are signs that the lawyer is involved in yer is not mandatory (this relates to procedures for minor of- criminal acts that are the subject of the investigation. fences). However, it is required that the court agrees on legal aid taking into account the relevance of the offence and the As the title of Directive 2013/48 indicates, the European in- personal circumstances of the applicant (reformed Art. 6.3 of strument does not only cover the right of access to a lawyer Act 1/1996). Furthermore, the procedure for substitution of the but extends to other rights of defendants in connection with initially designated lawyers at the request of the beneficiary the possibility of communicating with the outside world dur- is regulated. The substitution requires a duly justified request, ing deprivation of liberty: the right to inform a third party whose purpose is to give effect to the right to free legal aid. and the right to communicate with third parties and consular The request for substitution is submitted to the competent bar as- authorities. Both elements have been incorporated by means sociation, which has to reach a decision within fifteen days; the of the aforementioned Organic Law 13/2015 modifying decision denying the appointment of a new lawyer may be chal- Art. 520 LECrim. lenged (new Art. 21bis of Act 1/1996). Ultimately, another new aspect of the transposition is that the specific needs of persons in As a consequence, the detainee has the right to inform, without a vulnerable situation must be taken into account (new paragraph undue delay, a relative or person of his/her choice about his/ introduced in Art. 1 of Act 1/1996 making the Spanish Act on her deprivation of liberty and the place of custody in which Legal Aid compatible with Art. 9 of Directive 2016/1919). he/she is being detained at all times (Art. 520 e) LECrim). The detainee also has the right to communicate by telephone with a third party of his/her choice, in the presence of a police VI. Final Remarks officer or similar authority designated by the judge or prosecu- tor (Art. 520 f) LECrim). If the detainee is a foreigner, he/she Art. 48(2) of the Charter of Fundamental Rights of the Euro- has the right to have the deprivation of liberty and the place of pean Union states that respect for the rights of the defence of custody communicated to the consular office of his/her coun- anyone charged shall be guaranteed. Since the solemn procla- try and shall be entitled to receive visits from their representa- mation of the Charter in December 2000, the European Union tives, to communicate with them, and to conduct correspond- has come a long way towards harmonization of the proce-

eucrim 1 / 2020 | 53 New Challenges for Judicial Cooperation in Spain dural safeguards in its territory, which culminated in the 2009 cedural safeguards for children who are suspected or accused of Roadmap to strengthen the procedural rights of suspects and crimes), with Spain failing to complete transposition in time. The accused persons in criminal proceedings. This Roadmap pri- lack of government in Spain from March 2019 to January 2020 oritized a series of procedural safeguards that are considered as well as the management of the Covid-19 crisis since March essential; consequently, six Directives were adopted from this 2020 have not been helpful in furthering the implementation of Roadmap from 2010 to 2016, except the aspect of provisional these two Directives. The lack of transposition of Directive (EU) arrest (Measure f) that is to complete the long-awaited status 2016/343 may be excusable, since the enshrined right to the pre- of the suspected and accused persons in criminal proceedings. sumption of innocence and the right to be present at a trial are already guaranteed in the Spanish Criminal Procedure Act. The The Spanish legislator has already transposed four of the six transposition of Directive (EU) 2016/800, which will require the Directives. Corresponding procedural rights had already been amendment of Organic Law 5/2000 of 12 January 2000 regu- recognized before the transposition, but the implementation lating the criminal liability of minors, entails more challenges. of the EU Directives led to several improvements in defence Among other issues, it will be necessary to determine how to rights, which can be particularly observed as regards the right give effect to the reinforced right to information available to to translation/interpretation and the right of access to a lawyer. children. Another issue will concern the right to an individual assessment, taking into account the personality and maturity of The transposition of two of the six Directives is still pending the child, his/her economic, social, and family context as well as (presumption of innocence/right to be present at trial and pro- any specific vulnerability.

accused with the assistance of his/her counsel, so that the suspected person may receive their advice and know the scope of the proceedings Prof. Dr. Félix Valbuena González beforehand. See, in this context, M. López, “La modificación de la Ley de Enjuiciamiento Criminal en materia de derechos y garantías procesales”, Associate Professor of Procedural Law, (2015) 8540 Diario La Ley, 1, 8. University of Burgos 11 Cf. Art. 5(2) of Directive 2010/64. The first final disposition of Organic Law 5/2015 set a maximum deadline of one year (28 April 2016) for the submission of a respective bill. This bill has not been published to date. 12 O.J. L 142, 1.6.2012, 1. 13 This Organic Law gave new wording to Arts. 118, 302, 505, 520 and 775 LECrim. 14 BOE 239, 6.10.2015. This Organic Law reformed Arts. 118 and 520 again, introduced the new Art. 520 ter, and modified Art. 527 LECrim. * The financial support of the Spanish Ministry of Science, Innovation and 15 BOE 142, 12.6.2018. This Law reformed Art. 50 of Act 23/2014 of 20 No- Universities for the research project “The evolution of the European judi- vember 2014 on mutual recognition of judicial decisions in criminal matters cial area in civil and criminal matters; its influence on the Spanish process in the European Union. (CAJI) – PGC2018-094209-B-I00” is gratefully acknowledged. 16 C. Arangüena, (2019) 1 REE, op. cit. (n. 9), p. 5, 15. 1 COM(2003) 75 final. 17 M. Serrano, “Directiva relativa al derecho a la información en los pro- 2 COM(2004) 328 final. In connection therewith, see F. Valbuena, “Ad- cesos penales”, in: M. Jimeno (ed.) and R. Miguel (coord.), Espacio judicial aptation of the Proposal for a Council Framework Decision on Procedural europeo y proceso penal, 2018, p. 219, pp. 241–245. Safeguards to the Spanish Legal System”, in: M. De Hoyos (ed.), Criminal 18 O.J. L 294, 6.11.2013, 1. proceedings in the European Union: essential safeguards, 2008, p. 163, 19 This Organic Law modified Arts. 118, 509, 520, 527 LECrim and intro- 165–168; M. Jimeno-Bulnes, “The Proposal for a Council Framework Deci- duced the new Art. 520 ter. sion on Certain Procedural Rights in Criminal Proceedings throughout the 20 Art. 50 of Act 23/2014 of 20 November 2014 on mutual recognition of European Union”, in: E. Guild and F. Geyer (eds.), Security versus Justice? judicial decisions in criminal matters in the European Union. Police and Judicial Cooperation in the European Union, 2008, pp. 171–202. 21 C. Arangüena, (2019) 1 REE, op. cit. (n. 9), p. 5, 20–23. 3 O.J. C 295, 4.12.2009, 1. 22 F. Valbuena, “Directiva relativa al derecho a la asistencia letrada en 4 For further information on this matter, see M. Jimeno-Bulnes, “The EU los procesos penales”, in: M. Jimeno (ed.) and R. Miguel (coord.), op. cit. Roadmap for Strengthening Procedural Rights of Suspected or Accused (n. 17), p. 249, 254–257. Persons in Criminal Proceedings”, (2009) eucrim, 157–161. 23 This follows from a joint interpretation of Arts. 520.2 e) and 527.1 5 O.J. L 65, 11.3.2016, 1. LECrim. 6 O.J. L 132, 21.5.2016, 1. 24 O.J. L 297, 4.11.2016, 1. In this regard, S. Cras, “The Directive on the 7 O.J. L 280, 26.10.2010, 1. Right to Legal Aid in Criminal and EAW Proceedings. Genesis and Descrip- 8 Boletín Oficial del Estado (henceforth BOE) 101, 28.4.2015. tion of the Sixth Instrument of the 2009 Roadmap”, (2017) eucrim, 34. 9 C. Arangüena, “EU Directives on harmonization of procedural safe- 25 Specifically, a last paragraph was introduced in Art.1, Art. 6.3 was guards of suspected and accused persons. Their implementation into modified, and a new Art. 21 bis was introduced under the heading Substi- the Spanish Law”, (2019) 1 REE, 5, 7. accessed 2 December 2019. 26 C. Arangüena, (2019) 1 REE, op. cit. (n. 9), p. 5, 32. For the transposition 10 The need for interpretation may be necessary even before the first of the legal aid Directive into Spanish law, see also the article by B. Vidal interrogation for any proceedings are carried out in the presence of the Fernández, in this issue.

54 | eucrim 1 / 2020 Implementation of the Legal Aid Directive in Spain

Implementation of the Legal Aid Directive in Spain

Prof. Dr. Begoña Vidal Fernández*

The vast differences among the national standards for granting legal aid pushed the European Commission to propose common minimum rules in order to harmonize this right. This initiative was intended to ensure the effectiveness of the right of access to a lawyer, because the right of access to a lawyer can only be genuine if free legal aid is guaranteed when necessary. On the one hand, the implementation of the (finally adopted) Directive 2016/1919 into national law raises new questions; on the other hand, it has also been useful in resolving legal inconsistencies. This is the case in Spain, where the parliament implemented the Directive in 2018. This article informs the reader about the main contents and deficiencies of this implementation and on how Spanish judges have influenced the Spanish legislator with their jurisprudence by applying European standards even before the entry into force of Directive 2016/1919.

I. Introduction aid and the amounts for and organisation of implementing the EU rules. Secondly, the subject matter of free legal aid is so Following the adoption of the 2013 Directive on the right of closely linked to the right of access to a lawyer that the scope access to a lawyer,1 both the Council and the European Parlia- of Directive 2016/1919 cannot be separated from the scope of ment urged the Commission to present a legislative proposal Directive 2013/48. The following takes up these two consid- on free legal aid at its earliest convenience. The Commission’s erations and examines them especially against the background initiative was consolidated as a “Proposal for a Directive of of the implementation of the legal aid Directive into the Span- the European Parliament and of the Council on legal aid for ish legal system. suspects or defendants in custody and free legal aid in Euro- pean arrest warrant proceedings.”2 The diversity of national standards for the recognition of this legal aid (such as personal II. Implementation of the Legal Aid Directive: scope, time, or extent of its recognition and application as well The Spanish Case as on the organisation of the service or the systems of remuner- ation for the work carried out,3 among others) initially led the Directive 2016/1919 was to be transposed into national law Commission to focus on harmonisation when providing due by 5 May 2019. Spain did so by means of Law 3/2018 of legal aid to any person deprived of liberty or arrested while a 11 June 2018, which implemented Directive 2014/41/EU re- European Arrest Warrant (EAW) is being executed. However, garding the European Investigation Order.6 The Spanish legisla- Member States asked for this guarantee to be extended to all tor implemented the Directive within the framework of the two persons suspected or accused of a criminal offence within the aforementioned premises: (1) the right to free legal aid is closely European Union.4 The Commission’s initiative finally resulted linked to the fundamental right to defence through its relation to in the adoption of Directive (EU) 2016/1919 of the European the right of access to a lawyer, and (2) the State is committed to Parliament and of the Council of 26 October 2016 on legal aid assuming the costs and to establishing a payment system. In for suspects and accused persons in criminal proceedings and the following, section 1 deals with the extension of the right for requested persons in European arrest warrant proceedings.5 to legal aid in criminal proceedings for minor offences (de- spite the fact that the assistance of a lawyer is not mandatory This Directive should increase confidence between Member here), with how Spanish law provides for the right to request States in national criminal justice systems and thus facilitate replacement of the appointed lawyer, and with the new prob- the mutual recognition of decisions in criminal justice matters. lem on the right of legal persons to legal aid that arose during To that end, States undertake to give effect to the right to free the course of implementation. Section 2 outlines the solution legal aid as part of the fundamental right of defence. adopted by the Spanish legislator to finance legal aid services.

A definition of “legal aid” can be found in Art. 3 of Directive 2016/1919 as “funding and assistance from the Member State 1. The right to legal aid as to enable the right to access ensuring the effective use of the right of access to a lawyer.” to a lawyer being effective This concise definition includes two very important points: First, legal aid assistance is state-funded, thus the States deter- Concerning the first premise of Directive 2016/1919, the Span- mine both the conditions and requirements for granting legal ish Law of Free Legal Aid (hereinafter LAJG7) met almost all

eucrim 1 / 2020 | 55 New Challenges for Judicial Cooperation in Spain the requirements of the Union legislation and only needed to the Provincial Court of Madrid allowed an appeal stating that be amended in three respects: “the right to legal counsel [...] is fully effective in the trial of a „„To include special consideration of the specific needs of misdemeanour [...] as in any other criminal proceedings. The persons in vulnerable situations; specialty [...] is that the right to legal assistance is optional or „„To extend the right to legal aid and representation to de- waivable, which is not possible in proceedings for a crime. But fendants accused of minor offences in criminal proceedings if you choose to be assisted by counsel, this right is fully effec- (where legal assistance is not mandatory), if the defendant tive.”12 This line of case law has been taken into account by the requests for legal assistance or if the court requires legal Spanish legislator. The inclusion of the right to free legal assis- assistance in order to guarantee equality in the proceedings; tance in criminal proceedings for minor offences required an „„To recognize the right of the applicant of legal aid to request amendment of the LAJG. In this point, the Spanish legislator the replacement of the designated lawyer. adopted the approach that the lower courts had taken towards European standards even before their implementation, based Basically, the last two modifications have led to changes in the on the close link of the right to legal aid with the right to access Spanish system by filling legislative gaps, some of which had to a lawyer. The amended law establishes that the right to legal already been highlighted and resolved by the jurisprudence of aid includes free defense and representation by a lawyer and the lower courts. But there is a new problem not yet solved: a procedural representative in judicial proceedings, when the the right to legal aid of all legal persons with no financial re- intervention of these professionals is legally required or when sources for litigation. their intervention is expressly required by the court or tribunal by means of a reasoned order to guarantee the equality of the 13 a) Right to free legal defence and representation in criminal parties in the proceedings. proceedings for minor offences b) Right of the person receiving free legal aid to request Art. 2(1) of Directive 2016/1919 states that it applies to sus- the replacement of a designated counsel pects or defendants in criminal proceedings who are entitled to access to a lawyer under Directive 2013/48. Directive 2013/48 According to the Legal Aid Directive,14 Member States shall provides for the right to access to a lawyer in all criminal adopt the necessary measures, with due respect for the inde- proceedings. A contradiction arose in Spanish criminal pro- pendence of the legal profession, to ensure that legal aid ser- ceedings for minor offences. This is a simplified procedure, vices are of an appropriate quality to safeguard the fairness provided for the prosecution of minor offences of injury or of proceedings. And if needed, they shall take the necessary ill-treatment, “petty theft in flagrante delicto”, threats, coer- measures to ensure the right to have the lawyer providing legal cion, and of insults. The procedure is based on an oral hearing, aid services assigned to them replaced.15 The Union rule there- at which the complaint or claim, if any, is read out. Then the fore entails the competence of the judge to act of his or her witnesses presented by the accusing party are heard first, fol- own motion, if necessary, to guarantee quality assistance, the lowed by the statement of the accused and witnesses on his/ simple appointment of a lawyer not being sufficient. This way her behalf.8 On the one hand, the assistance of a lawyer is not of acting was already followed by Spanish judges, even before required in such trials for minor offences when it carries a pen- the entry into force of the Directive, whenever they considered alty of a fine of no more than six months.9 On the other hand, it necessary to safeguard the fundamental right of defence.16 as the criminal proceedings are conducted before a criminal court, the Spanish regulation falls within the scope of Direc- The LAJG incorporates the right to request the replacement of tive 2013/48. The Directive requires the assistance of a legal a designated counsel into the new Art. 21 bis,17 as a measure professional before the accused is questioned by the police or linked to the quality of the assistance provided. This amend- by another law enforcement or judicial authority,10 unless he/ ment raises the level of protection, since this right had not she validly waives, i.e. if there is evidence of his/her express previously been contemplated. Spanish law also enables to wish to waive and if the waiver is informed and unequivocal. request substitution by another ex officio lawyer or to appoint a lawyer of the defendant’s own choice,18 although this one is In this situation, Spanish Provincial Courts had considered not an unlimited right. The right of defence entitles the defend- that, if an entitled person exercises the right to legal assistance ant to change his/her lawyer if he/she has lost confidence in requesting a counsel, then the right to legal assistance deploys the person originally appointed (or wishes to appoint a lawyer all its effects even in cases where domestic legislation pro- of his/her own choice). However, this request can be rejected, vides that assistance of a lawyer is not mandatory. This means without infringing the right of defence, if the request is ar- that the defendant can request free legal assistance if he or bitrary in the court’s opinion, i.e., unreasonably motivated or she proves to have insufficient resources for litigation.11 Thus, unjustified:19

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„„Because the ex officio defence in the case does not indicate 2. Financing legal aid any lack of work before the court; „„Because the shortcomings or disagreements are irrelevant As mentioned above, the second major point of Directive or manifestly unjustified; 2016/1919 deals with the obligation of States to bear the costs „„Because a delaying strategy is evident or because there is a and establish a system of payment for free legal aid services. calculated lack of attention to the right of defence. Free legal aid is included as a compulsory service in the Span- ish law for lawyers and procedural representatives and, con- Although the reform provided for the ex officio appointment sequently, payment for the services is regulated as compen- of the lawyer, and his/her replacement at the request of the sation: “the professionals who provide the compulsory legal defendant, Spanish law says nothing about the possibility of aid service shall be entitled to compensation in the form of the judge to order the lawyer to be replaced, by his or her own indemnification.”23 This means that this amount is not subject decision rather than at the request of the defendant (be it that to VAT.24 the lawyer was chosen by the defendant or be it that he/she was appointed ex officio). The reform therefore did not seize Setting the right fees for lawyers providing legal aid services the opportunity to take up the respective case law of the lower is closely related to the quality requirement. If the fees are too Spanish courts to resolve this question. low, lawyers will not be willing to devote the time and effort to providing high-quality service. Practice shows that providing c) Legal persons’ right to legal aid in the Spanish legal aid as a service is onerous, and the question arises as to criminal justice system how to pay for this service. Since the costs of legal aid could prevent it from being effective, the European Economic and The right of legal persons to legal aid triggered new challenges Social Committee proposed the creation of a European soli- that arose from implementation of the Legal Aid Directive. The darity fund to cover the costs at the European level.25 problem emerged as a consequence of the criminal liability of legal persons if it is established and the legal person qualifies The Spanish legislator has chosen to regulate the financial sup- for free legal aid within the framework of the right of access port as a subsidy from the budgets of the Autonomous Com- to a lawyer. According to Art. 4(1) of Directive 2016/1919, munities (abbreviated in Spanish as CC.AA.), whose public Member States shall ensure that suspects and accused persons administrations are responsible for the implementation, care, who lack sufficient resources to pay for the assistance of a law- and operation of the free legal aid services provided by the yer have the right to legal aid if so required in the interest of Bars and Lawyers’ Associations.26 The decentralization may justice. The Directive neither includes legal persons into its lead to significant differences in the amounts of the fees, de- scope nor excludes them from its scope. In particular in Spain, pending on the Autonomous Community. Such a scheme risks this leads to several legal questions. breaking with essential principles, such as equality before the law, the right to judicial protection, and the right to defence. In Criminal liability of legal persons is known in Spain since order to mitigate friction, a proposal was introduced to amend 2010.20 Spanish legislation only provides for legal aid to legal the Free Legal Aid Regulation (RAJG) implementing the Le- persons in so far as they pursue purposes of social or public gal Aid Act, in order to establish a State Advisory Council in interest and who lack sufficient resources for litigation.21 Fur- which all public administrations and bodies involved are rep- thermore, Associations aiming at the promotion and defence resented. This proposal is still debated. of the rights of victims of terrorism and associations aiming at the promotion and defence of the rights of persons with dis- abilities are also entitled to free legal aid, regardless of the III. Concluding Remarks resources for litigation.22 The question now arises as to what the situation of legal persons is other than those included in The implementation of Directive (EU) 2016/1919 forced the the law. Should they be entitled to free legal aid if they are Spanish legislator to amend its legislation on legal aid. As a accused in criminal proceedings without having the resources result, the transposition improved the quality of the regulation, to litigate? The answer should be in the affirmative, as legal filling gaps and including some solutions already rendered by representation is certainly necessary from the moment that Spanish courts in their case law. The right to free legal aid the criminal liability of legal persons is established. However, provided by defence representatives was extended to criminal granting legal aid to all legal persons does not seem possible proceedings for minor offences. The right of the person receiv- at the moment in Spain, unless the Spanish legislator expressly ing legal aid to request the replacement of a designated legal provides for the respective legislation to include all legal per- counsel was included. A new problem in relation to the right sons in the national legal aid scheme. of legal persons to legal aid arose, however, as the Spanish

eucrim 1 / 2020 | 57 New Challenges for Judicial Cooperation in Spain law on legal aid explicitly only includes certain legal persons recommended. Regarding the financing of legal aid, the Span- and associations, but not all of them. The Spanish courts may ish legislator still has to find solutions in order to mitigate fric- decide otherwise on the basis of the text of the Directive; how- tion that might arise from the decentralization of free legal aid ever, an amendment of the Spanish law in this point is strongly support.

12 Judgement of the Audiencia Provincial (AP) of Madrid 768/2016 of 28 December 2016. In 2016, the AP Madrid resolved an appeal against a Prof. Dr. Begoña Vidal Fernández sentence handed down in proceedings for a minor offence of ill-treatment in which the appellant had been sentenced to a one-month fine. The ac- Associate Professor of Procedural Law, cused was summoned in accordance with the requirements established by University of Valladolid law, which included the information that he could be assisted by a lawyer if he so requested, even if in this case legal assistance was not mandatory. The appellant sent a fax to the court stating that he wanted the assistance of a lawyer but that, due to insufficient resources, he was requesting one ex officio. The request was denied because the law does not require the assistance of a lawyer in such trials for minor offences (see Art. 962.1 of the Criminal Procedural Law). * The financial support of the Spanish Ministry of Science, Innovation 13 Art. 6 LAJG: “The right to free legal aid includes the following ben- and Universities is gratefully acknowledged for the research projects “La efits: (…) 3. Free defense and representation by a lawyer and a procedural evolución del espacio judicial europeo en materia civil y penal. Su influ- representative in judicial proceedings, when the intervention of these encia en el proceso español” -The evolution of the European judicial area professionals is legally required or when, in the absence of such interven- in civil and criminal matters: its influence on the Spanish process- (CAJI) tion, any of the following circumstances arise: - PGC2018-094209-B-100 – and “Garantías procesales de investigados y (a) their intervention is expressly required by the court or tribunal by acusados: la necesidad de armonización y fortalecimiento en el ámbito means of a reasoned order to guarantee the equality of the parties in the de la Unión Europea” -Procedural safeguards of suspects and accused proceedings; persons: the need for harmonisation and strengthening in the European (b) in the case of minor offences, the person against whom the criminal Union - DER 2016-78096-P. The author also gratefully acknowledges the proceedings are directed has exercised his or her right to be assisted by financial support of the Castillian and Leon Government for the research a lawyer and it is so agreed by the court or tribunal, having regard to the project: “Sociedades seguras y garantías procesales. El necesario equi- nature of the offence in question and the personal circumstances of the librio” – Safe societies and Procedural Guarantees. The necessary balance applicant for legal aid.” (Translation provided by the author). - VA135G18). This article is written within the framework of these projects 14 Art. 7(1) lit. b) Directive 2016/1919. 1 Directive 2013/48/EU of the European Parliament and of the Council of 15 Art. 7(4) Directive 2016/1919. 22 October 2013 on the right of access to a lawyer in criminal proceedings 16 Judgement of Audiencia Provincial of Navarra (Section 1) 265/2017 and in European arrest warrant proceedings, and on the right to have a of 13 December 2017 (ECLI:ES:APNA:2017:522): “The duty of the judicial third party informed upon deprivation of liberty and to communicate with courts to ensure that the defencelessness of the defendant is avoided is third persons and with consular authorities while deprived of liberty, O.J. protected especially in the criminal process [...]. The Constitutional Court L 294, 6.11.2013, 1. has affirmed in numerous decisions the positive duty to ensure the effec- 2 COM(2013) 824 final of 27 November 2013. tiveness of the defense of the accused or convicted person in criminal pro- 3 In some Member States, lawyers are paid directly, by the hour, or by ceedings by professionals designated ex officio.” (Translation by author). the State budget; in yet other States, lawyers are paid directly by the bar 17 New Art. 21 bis LAJG: “(1) The person receiving free legal aid shall associations. have the right to urge the appointment of new professionals by means of 4 Note by the Chair 15490/14. DROIPEN 129 COPEN 278 CODEC 2241, a duly justified request, which shall not suspend the appointment of the 17 November 2014. Adopted by the EU JHA Council of 4–5 December 2014. professionals already agreed upon.” (Translation by the author). 5 O.J. L 297, 4.11.2016, 1. 18 Spanish Supreme Court Judgement 821/2016 of 2 November 2016, 6 Spain has chosen to incorporate all the directives on judicial coopera- ECLI:ES:TS:2016:4737. The accused was detained in Cádiz (Andalusia) tion in criminal matters into a single regulation: Law 23/2014 on the Mutual and the trial was to take place in Irun (on the border of France), so the ex Recognition of Decisions in Criminal Matters in the European Union officio lawyer did not communicate with him until a few minutes before (Ley 23/2014, of 20 November, de reconocimiento mutuo de resoluciones the trial, which prevented him from providing information to prepare the penales en la Unión Europea). The implementation of the EIO Directive was defense properly. His right to defense was violated because a lawyer was used to bring Spanish legislation on legal aid into line with the European appointed to him at the place where the trial was taking place (Irun) and standard. not where he was being detained, and he was neither given the oppor- 7 Ley 1/1996 of 10 January, de Asistencia Jurídica Gratuita. tunity to appoint a private lawyer, nor was the trial suspended when he 8 Art. 969 of the Spanish Criminal Procedural Law. resigned his ex officio lawyer during the trial. 9 Art. 967.1 of the Spanish Criminal Procedural Law: “In the summonses 19 Judgement of Audiencia Provincial of A Coruña, Section 6, No. 14/2019 issued to the complainant, the injured party and the person under investi- of 7 February 2019, ECLI:ES:APC:2019:302. gation for the trial shall be informed that they may be assisted by a lawyer 20 By means of Organic Law 5/2010, the Spanish Criminal Code was if they so wish (...) for the prosecution of minor offences carrying a fine of modified to include a new Art. 31bis establishing criminal liability of at least six months, the general rules of defense and representation shall legal persons for offences committed by its legal representatives on apply” (i.e., legal assistance is then required). Translation provided by the behalf of and for the benefit of the legal person, and for offences facili- author. tated by the legal person through failure to exercise due control over its 10 Art. 3(2) lit.-a) Directive 2013/48/EU. employees. 11 Art. 4(1) Directive 2016/1919: “Member States shall ensure that sus- 21 According to Art. 3.5 LAJG, the phrase “insufficient resources for pected or accused persons who do not have sufficient resources to pay litigation” refers to a legal person with no sufficient assets and an annual for the assistance of legal counsel are entitled to free legal aid when the income less than three times the “public revenue index” (Indicador Público interests of justice so require.” de Renta a Efectos Múltiples – IPREM).

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22 Art. 2. lit. c) and lit. i) LAJG. des Barreaux francophones et germanophone. On the basis of this ruling, 23 New Art. 22 LAJG. the Directorate-General considered this payment to be a taxable event 24 Art. 1 LAJG: “The free legal aid service shall be compulsory under the for VAT. Spanish VAT legislation stipulates that services provided free of terms provided in this law. The professional associations may organize the charge and which are compulsory for the taxable person are not subject to service and exempt the member when there are reasons that justify it.” VAT (Art. 12(3) Law 37/1992). An appeal was lodged with the Supreme Court (SC) against the proposal 25 Opinion of the European Economic and Social Committee on the to amend the Regulations on the organization and operation of free pro- Proposal for a Directive of the European Parliament and of the Council on cedural representation, which established the universal and compulsory provisional legal aid for suspects or accused persons deprived of liberty assignment of its members to the free legal aid service. The SC dismissed and legal aid in European arrest warrant proceedings COM(2013) 824 final the appeal, stating that “the exercise of proxy, a profession in which – 2013/0409 (COD), O.J. C 226, 16.7.2014, p. 63–67: 1.4. “… It would point membership is mandatory, implies the assumption of a series of collegiate out that legal aid in such proceedings must not be jeopardised because of obligations, including that of representing in court those who have the the budgetary difficulties facing some Member States, and it wonders to right to free legal aid under the terms established by the Bar” (Supreme what extent resources could be made available at European level, say in Court judgement 3242/2014, 29 January 2016, ECLI:ES:TS:2016:413). This the form of a European fund”. statement on the obligatory nature of the service was made by the SC 26 This Council will include all administrations with competence in the in response to doubt, voiced especially by solicitors, as a result of the field of the administration of justice and lawyers/solicitors through their interpretation given by the Spanish Directorate-General for Taxation to general associations. Its aim is to harmonize, unify and share practices the ECJ ruling of 28 July 2016 (ECLI:EU:C:2016:605) in case C-543/14 Ordre and criteria for action.

Legal Protection of Minors Implementation of EU Directives in Spain

Prof. Dr. Mª Belén Sánchez Domingo

The indiscriminate use of social networking for interpersonal relationships has increased the possibilities to engage in behav- iour that affects the private and personal lives of citizens in general and minors in particular. Offences such as child grooming have been incorporated into the Spanish Criminal Code, in compliance with international and community commitments. This paper aims to analyze the changes made by the Spanish legislator to the Spanish criminal law system as a result of the trans- position of EU directives on sexual crimes against minors.

I. Introduction of these new forms of communication between minors, and simple lack of knowledge of the dangers involved in the use The development of new information and communication and dissemination of private images of other minors on the technologies (ICT) and, above all, the increase in data trans- internet, all of which is linked to the vulnerable situation in mission networks – basically the internet – offer numerous ad- which minors find themselves. These risks are associated with vantages and improve people’s quality of life by reinforcing certain forms of crime committed by sex offenders, such as personal and work relationships. They considerably influence child grooming, cyber-bullying of minors under the age of six- the private sphere, however, and, in turn, their indiscriminate teen and sexting – a term used to describe behaviour involving use entails risks that must be minimized by adequate responses the sending of images with sexual content to minors. They vic- to the new demands. Indeed, the use of social networks has timize minors by damaging their legal rights, e.g., image and multiplied the possibilities for types of behaviour to develop privacy rights and the right to sexual indemnity, understood as that affect the private and personal lives of citizens and,in a process of formation and development of the minor’s per- particular, of minors. sonality and sexuality.

The use of ICT by minors, as a form of social interaction, in- Today’s society is concerned about these types of behaviour volves certain risks for various reasons. They include the ease and strongly rejects them. Hence, effective measures to com- with which minors can access the internet, inappropriate use bat this phenomenon in order to prevent such behaviour from

eucrim 1 / 2020 | 59 New Challenges for Judicial Cooperation in Spain going unpunished must be established. These responses are view of the fact that the welfare and best interests of children not only established by the Member States but also by Eu- are fundamental values shared by all Member States. Art. 1 ropean or international institutions. On the one hand, the aim sets out the purposes of the Convention: is to prevent minors from the new dangers associated with „„To prevent and combat sexual exploitation and sexual abuse the virtual world and, on the other, to dissuade sex offenders of children; from attempting the sexual indemnity of minors through ICT. „„To protect the rights of child victims of sexual exploitation Among the multiple criminological manifestations of the use and abuse; of ICT that can cause harm to minors, the so-called crime of „„To promote national and international cooperation against child grooming – the crime of sexual harassment of minors sexual exploitation and the abuse of children. through the internet – stands out. This form of crime consists of the use of new technologies to contact a minor for the pur- The criminal law aspects of the Convention that are relevant for pose of performing sexual acts as well as the act of tricking a the crime of child grooming are contained in Chapter VI under minor into providing the offender with pornographic material. the heading “Substantive criminal law.” Art. 23 requires States Parties to criminalise the conduct of those who, by means of The Spanish legislator reacted to this form of sexual harass- IT technologies, propose to meet a child under the minimum ment of minors performed through social networks by re- age of sexual consent4 for the purpose of committing an act forming the criminal law with an act in 2010, namely Organic against him or her constituting sexual assault or abuse or the Law 5/2010 of 22 June 2010. The new law integrated provi- production of child pornography, provided that the proposal sions, which specifically typifies the criminal conduct of cyber was followed by material acts leading to the meeting.5 grooming into the Spanish Criminal Code. In so doing, the Spanish legislator complies with the European and interna- As far as substantive criminal law at the EU level is concerned, tional commitments Art. 83(1) TFEU includes the possibility of laying down mini- mum standards for definitions of criminal offences and sanc- This article analyses the regulations that were drawn up, both tions of particular gravity and cross-border dimension. They at the international and European levels, with the aim of estab- arise from the nature or impact of such offences or from the lishing a legal framework for the effective protection of mi- “special need” to combat them, according to common criteria. nors against sexually abusive and exploitative behaviour (II.). This provision is of particular relevance when the Treaty itself It outlines the way in which the Spanish criminal legislator has describes those “areas of particularly serious crime,” in which addressed this protection in the Spanish Criminal Code (III.) Member States must approximate their domestic criminal law before a summary assessment of the reforms is made in the in order to comply with their obligations under Union law, in- final remarks (IV.). cluding conduct relating to the sexual exploitation of minors.

On the basis of Art. 83(1) TFEU, the European Parliament and II. Normative Instruments to Combat Child Sexual Abuse the Council established Directive (EU) 2011/93 of 13 Decem- ber 2011 on combating sexual abuse and exploitation of chil- The response, both at European and international levels, to dren and child pornography, replacing Council Framework certain behaviours that affect both the development and the Decision 2004/68/JHA of 22 December 2003.6 This Directive sexual formation of minors, is reflected in various normative provides, inter alia, for a general legal framework to combat instruments. At the international level, the most prominent re- serious criminal offences with regard to the sexual exploitation sponse is the United Nations Convention on the Rights of the of children; the Directive states that these offences require the Child of 20 November 1989,1 in which Art. 19 urges States adoption of a “comprehensive approach covering the prosecu- Parties to take all appropriate measures to protect the child tion of offenders, the protection of child victims and prevention from all forms of physical or mental violence, including sexual of the phenomenon.”7 In addition, the child’s best interests must abuse.2 be a primary consideration when carrying out any measures to combat these offences in accordance with the Charter of Fun- At the European level, several instruments have been devel- damental Rights of the European Union and the United Nations oped to combat the phenomenon of sexual exploitation of chil- Convention on the Rights of the Child. The Directive calls on dren, e.g., the Council of Europe Convention on the Protection the Member States to declare both child grooming (using infor- of Children against Sexual Exploitation and Sexual Abuse of mation and communication technologies) and the solicitation of 25 October 2007 (the “Lanzarote Convention”).3 In its pream- children (without using the internet) criminal offences, by en- ble, the Convention stresses the need for protection of children suring that the perpetrators of such offences are prosecuted in not only by their families but also by society and the State, in such a way that the conduct does not go unpunished.8

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The first articles of the Directive contain definitions relating nication is easy, due to the ease of access and anonymity they to “minor,” “age of sexual consent,” and “online solicitation provide, and counteracts it with a new paragraph in Art. 183 of children for sexual purposes.” With reference to the latter ter of the Criminal Code. This provision foresees punishment concept, Art. 6 of the Directive calls on Member States to take to anyone who, through technological means, contacts a minor the necessary measures to ensure that the following intention- under the age of fifteen and carries out acts intended to trick al conduct, carried out by means of information and commu- him or her into providing pornographic material or showing nication technologies, is punishable: a) a proposal by an adult pornographic images to him or her. to meet a minor who has not reached the age of sexual con- sent;9 b) this proposal for contact must be for the purpose of With the 2015 reform of the Spanish Criminal Code, the Span- performing a sexual act with a minor who has not reached the ish legislator reproduced the content of Art. 183 bis in the first age of sexual consent (Art. 3(4)) or producing child pornogra- number of Art. 183 ter,12 keeping the same typical structure phy (Art. 5(6)), and c) the proposal must be accompanied by as well as the penalty of Art. 183 bis. However, Art. 183 ter material acts aimed at meeting the minor. Similarly, Art. 6(2) (1) extends the concept of victim by including minors under of the Directive punishes any attempt by an adult to commit, sixteen years of age, in response to the Spanish legislation that by means of information and communication technologies: raised the age of sexual consent. Consequently, the Spanish (a) the acquisition or possession of child pornography Criminal Code presumes that consent given by a minor for the (Art. 5(2)); (b) knowing accession to child pornography by performance of acts of a sexual nature is irrelevant if the minor any technological means (Art. 5(3)) or tricking of a minor is under the age of sixteen. Raising the age of sexual consent below the age of sexual consent into providing child por- by the Spanish legislator came in response to the suggestion nography depicting himself/herself. For all the above-men- made by the United Nations Committee on the Rights of the tioned behaviours, inducement and complicity are punished, Child, which urged it to reform the Spanish Criminal Code in too (Art. 7(1)). Art. 9 of the Directive refers to a number of order to bring the age of sexual consent in line with the UN aggravating circumstances for the offence of solicitation of Convention on the Rights of the Child. The aim was to inten- children for sexual purposes by technological means, which sify the framework for protection of minors against conduct of the States themselves must provide for in their domestic a sexual nature. The most relevant novelty introduced by LO criminal laws, in so far as they do not form part of the con- 1/2015 is the introduction of a new criminal type in section 2 stituent elements of the offences. Aggravating circumstances of Art. 183 ter. It stipulates the offence of swindling the mi- could be: the offence was committed against a child in a par- nor through new information technologies with the purpose of ticularly vulnerable situation; the offender deliberately or providing the offender with pornographic material or showing recklessly endangered the life of the child; the offence was him/her pornographic images in which a minor is represented committed using serious violence or caused serious harm to or appears. the child; the offence was committed within the framework of a criminal organisation. 1. The offence of child grooming in Art. 183 ter (1)

III. Child Grooming in the Spanish Criminal Law As far as the offence of child grooming in Art. 183 ter (1) is concerned, the Spanish legislator established the following As mentioned in the introductory remarks, the Spanish legis- elements of crime: lator has complied with the above-mentioned texts (both Eu- „„Contact with a minor under the age of 16; ropean and international) by including Art. 183 bis into the „„Contact must be made through the internet, by telephone, Spanish Criminal Code in the 2010 reform.10 Art. 183 bis re- or by means of any other information and communication fers to the crime of child grooming by taking up Art. 23 of technology; the Council of Europe Lanzarote Convention and transposing „„A proposal to meet the minor with the purpose of commit- Council Framework Decision 2004/68 of 22 December 2003 ting one of the offences of Arts. 183 (sexual abuse of a mi- on combating the sexual exploitation of children and child nor under sixteen) or 189 (child pornography offence); pornography,11 which was later replaced by the above-men- „„The proposal must be accompanied by material acts aimed tioned Directive 2011/93/EU. The Directive itself was trans- at bringing the minor closer, i.e., acts tending to the physi- posed by a subsequent reform in 2015 that introduced a series cal encounter between the two.13 of novelties, among them, it reflected the content of the child grooming offence from Art 183bis in Art 183 ter. The amend- Thus, the objective elements of crime first require contact with ing act (Organic Law 1/2015) specifies that abuse of minors a minor. In the opinion of most criminal law scholars, this con- committed via the internet or by other means of telecommu- tact must be responded to by the minor.14 The requirement of

eucrim 1 / 2020 | 61 New Challenges for Judicial Cooperation in Spain contact with the minor specifically described in the criminal Ultimately, the crime of child grooming includes the subjec- type under the expression “contact with a minor” is actually tive requirement of a transcendent internal tendency, namely neither determined in Art. 23 of the Lanzarote Convention the ultimate purpose of arranging a meeting with the minor nor in Art. 6 of Directive 2011/93. Both texts only refer to the in order to commit any of the crimes contained in Arts. 183 meeting proposal, provided that such proposal has been ac- and 189. This requirement poses problems of interpretation. companied by material acts leading to such an encounter. This The reference to Art. 189, which describes conduct relating means that the Spanish legislator goes beyond the terms of the to child pornography, leaves open what must be determined: Directive and the Convention. (1) must the contact and proposal of contact with the child by technological means be carried out with the aim of perform- Second, the wording of Art. 183 ter (1) implies that the pro- ing the conduct described in Art. 189 or (2) must the criminal posal should lead to arranging a meeting and must be ar- forms of conduct described in Art. 189 constitute the aim of ranged by one of the means indicated in this regard, namely approaching children by technological means? Art. 189 (1) through the internet, telephone, or any other means of infor- lit. a) refers to the conduct of recruiting a minor for exhibition- mation and communication technology. The specific allusion ist or pornographic purposes or performances, whether public to these technological means has led legal doctrine to ques- or private, or for the production of any pornographic material. tion whether Art. 183 ter only covers virtual contacts and The difficulty therefore lies in distinguishing the conduct of not direct, personal contacts.15 A criminal law response, how- abducting a minor in Art. 189 (1) lit. a) from that of contacting ever, cannot be understood as covering only cases in which a minor in Art. 183 ter (1). If the subject engages in the con- the perpetrator establishes personal contact with the minor duct of contacting a minor for the purposes set out in Art. 189 through the aforementioned means, leaving out traditional (1) lit. a), the conduct in Art. 183 ter would be a preparatory types of approaches to the minor for sexual purposes car- act with respect to the conduct in Art. 189. ried out in the physical environment.16 The reasons that may have led the legislator to create this loophole are difficult to discern; omitting contact in the real world is problematic, as 2. The preparation of child grooming in Art. 183 ter (2) it is just as dangerous for the sexual indemnity of the minor as the virtual world. In accordance with the Directive, Art. 183 ter punishes the conduct of contacting a minor under the age of 16 by perform- Third (and along with the act of contacting a minor for sexual ing acts intended to deceive him or her in order to obtain por- purposes), the criminal offence of child grooming requires nographic material and or show him or her pornographic mate- the making of a proposal to meet the minor in order to com- rial depicting or showing images of a minor. Unlike Art. 6(2) mit material acts aimed at becoming physically closer. It is of the Directive, Art. 183 ter (2) does not punish the attempt of not fully clear what these types of acts really are, since the an adult to engage in the conduct of acquiring, possessing or Spanish legislator does not provide any explanation on this accessing child pornography, which requires conning a minor matter. The legislator just specifies its nature, which has to be in order to obtain the pornographic material. Art. 183 ter (2) material, and its purpose aimed at bringing the minor closer. instead defines a preparatory act for the commission of a crime As a result, a reasonable limitation of the types of acts is not of child pornography. Preparing for the performance of one of possible. In my opinion, the introduction of this element of the types of conduct constituting the crime of pornography, “material acts” does not provide information on which acts the offender must contact the minor to be provided with the are to be performed by the subject in order to approach or pornographic material. If the offender contacts the minor and maintain contact with the child. If the acts involve approach- the minor does not provide the material, the conduct will not ing the child, one interpretation is to strengthen trust with be considered an attempt at a pornographic crime, but rather a the victim. Even if the physical encounter is intended, deter- preparatory act to the crime of child pornography.19 mining the place where the encounter will take place or the way in which it should be carried out could be accepted as a The dictionary of the Royal Academy of the Spanish Lan- material act. The problem arises in determining what kinds guage specifies that the act of deceiving consists of an act tak- of acts are covered by the criminal law. Therefore, failure to ing advantage of the inexperience or lack of inhibitions of the specify the material acts intended for the encounter with the deceived. Therefore, the act of deception entails the need for child may lead to confusion in legal practice by obliging law deception which manifests itself in the use of certain tricks enforcement to specify and determine what these “material by the offender to attract the minor. The structure of the of- acts” should be.17 This inaccuracy runs counter to the prin- fence of deception is similar to that of Art. 183 ter (1) – child ciple of legal certainty and has been criticized by criminal grooming –, as both offences coincide in the conduct of con- law experts for its lack of precision and its ambiguity.18 tacting a minor under the age of sixteen through the internet,

62 | eucrim 1 / 2020 Legal Protection of Minors by telephone, or by any other technological or communication communication technology, as defined in Art. 6 of Direc- means. However, there is a difference in relation to the acts to tive 2011/93/EU. We can observe here that there were some be performed by the subject, as Art. 183 ter (2) specifies that flaws in the transposition of Union law into Spanish legis- they must be aimed not at meeting, but at tricking the minor lation. The Spanish legislator was not very accurate when into providing him or her with pornographic material. establishing the criminal elements of child grooming in Art. 183 ter (1) of the Spanish Criminal Code. The Spanish As regards its compatibility with the Directive, however, there legislator, for instance, opted for a numerus apertus when are some differences in the wording of Art. 183 ter (2) when making reference to “the material acts” that must accom- comparing it with Art. 6(2) of Directive 2011/93. Firstly, with pany the proposal to meet a minor. If the intention is that reference to the active subject, the Directive applies the term these material acts aim at an encounter with the minor, the “adult,” a fact that is obviated by the Spanish legislator when legislator should have delimited these acts, specifying them using the wording “the person who.” Moreover, Art. 6(2) of exhaustively or at least introducing a definition of what is to the Directive mentions the act of tricking a minor with the aim be understood by “material acts.” This technical deficiency of obtaining pornographic material from the minor with whom in the concept of criminal liability is sure to create legal the adult is in contact, a precision not covered by Art. 183 ter uncertainty, as it will need to be interpreted by the Span- (2), which merely refers to “a minor.” By using this expression ish courts. The new Art. 183 ter (2) which is to transpose “a minor”, it seems that the offence of solicitation of children Art. 6(2) of the Directive, entails problems of interpretation for sexual purposes will apply in cases in which the porno- and delimitation, since the references to the criminal offence graphic material or pornographic images provided by the mi- of child pornography as defined in Art. 189 of the Spanish nor with whom the offender is in contact do not belong to him Criminal Code are unclear. A restrictive interpretation is ad- but to another minor. The Spanish Criminal doctrine has criti- vocated here by limiting the terms “pornographic material” cised the configuration of the conduct in Article 183ter (2) be- and “pornographic images”. cause it establishes criminal liability not only for the provision of images of the minor who is the subject of the request, but also for images representing any minor. Thus, Tamarit Sum- alla points out that the extension of criminal liability is too excessive, as it goes beyond the mere request for pornographic images of the victim. Therefore, Tamarit Sumalla opts for a restrictive interpretation by arguing that any reference to the Prof. Dr. Mª Belén Sánchez Domingo elements of “pornographic material” and “pornographic im- Associate Professor of Criminal Law, ages” should be understood as pornographic in the strict sense, University Rey Juan Carlos, Madrid without considering such images with a provocative or exotic character.20 Considering the problems of interpretation and de- limitation of Art. 183 ter (2) with the crime of Art. 189 (child pornography), we can indeed question whether the creation of this criminal offence in the Spanish Criminal Code is justified. 1 Ratified by Spain on 30 November 1990, BOE n. 313 of 31.12.1990. See also the “Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography”, signed in IV. Final Remarks New York on 25 May 2000. 2 Following its Preamble: “Bearing in mind that the need to extend par- ticular care to the child has been stated in the Geneva Declaration of the The reform carried out by the Spanish legislator with regard Rights of the Child of 1924 and in the Declaration of the Rights of the Child to the crimes of sexual harassment of minors must generally adopted by the General Assembly on 20 November 1959 and recognized in the Universal Declaration of Human Rights, in the International Covenant be viewed positively. It responds to the need to criminalise on Civil and Political Rights (in particular in Arts. 23 and 24), in the Inter- behaviours that affect the process of formation and develop- national Covenant on Economic, Social and Cultural Rights (in particular ment of the personality and sexuality of the minor, that is to in Art. 10) and in the statutes and relevant instruments of specialized agencies and international organizations concerned with the welfare of say his or her sexual indemnity. So far, the Spanish legislator children”. is following the approach marked by the European legisla- 3 CETS No. 201, ratified by Spain on 5 August 2010, entered into force for Spain on 1 December 2010. tor who established the protection of the sexual integrity of 4 With reference to the age of consent of the child, Art. 18 specifies that minors in different instruments. it is up to each States to determine the age below which sexual activity with a child is not permitted. 5 Likewise, the European Charter of the Rights of the Child (O.J. C 241, This article especially examined the offence of solicitation 21.9.1992), which provides for the protection of children from all forms of children for sexual purposes by means of information and of sexual exploitation, and the 1997 European Parliament resolution on

eucrim 1 / 2020 | 63 New Challenges for Judicial Cooperation in Spain

the protection and rights of the child also deserve mention (O.J. C 371, 13 See. C. Díaz Morgado, “Delitos contra la libertad e indemnidad 8.12.1997, 210). sexual”, in M. Corcoy Bidasolo, (Dir.), Manual de Derecho Penal, Parte 6 O.J. L 335, 17.12.2011, 1. Especial, vol 1, 2019, pp. 294–295. 7 Recital 6 of Directive 2011/93. 14 See J.M. Tamarit Sumalla, “Los delitos sexuales. Abusos sexuales. 8 Cf. Recital 19 of Directive 2011/93. Delitos contra menores (Arts. 178, 180, 181, 183 and 183 bis)”, in: G. 9 Under the heading “Definitions”, Art. 2(b) of the Directive defines the Quintero Olivares, (ed.), La reforma penal de 2010: análisis y comentarios, age of sexual consent, specifying that it is the age below which, in ac- 2010, p. 165, pp. 165–171; it is understood that the child is not contacted cordance with national law, it is prohibited in all cases to perform acts of a simply by sending messages (for example, via e-mail) without receiving a sexual nature. response. 10 More precisely, Organic Law 5/2010 of 22 June 2010 included Art. 183 15 Vid, M.J. Dolz Lago, “Un acercamiento al Nuevo delito child grooming. bis under Title VIII of Book II (Criminal Law, Crimes against sexual freedom Entre los delitos de pederastia”, (2011), Diario La Ley, n. 7575, 23 February and sexual indemnity), Chapter II bis (entitled: “On the abuse and sexual 2011, 1, 13, for whom this contact would be ruled out if it were not followed aggressions to minors under thirteen years of age”). by technological contact. 11 O.J. L 13, 20.2.2004, 44. 16 In this regard, reference is made to L. Nuñez Fernández, “Presente y 12 Article 183, ter provides that: 1. Anyone who, through the Internet, futuro del mal llamado delito de ciberacoso a menores: análisis del Art. 183 telephone or any other information and communication technology, con- bis CP y de las versiones del Anteproyecto de Reforma del Código Penal de tacts a minor under the age of 16 and proposes to arrange a meeting with 2012 y 2013”, (2012), Anuario Derecho Penal y Ciencias Penales, 65(1), 179, him for the purpose of committing any of the offences described in articles 193. 183 and 189, provided that such a proposal is accompanied by material 17 J.M. Tamarit Sumalla, “Los delitos sexuales ...”, op. cit. (n. 14), p. 172, acts aimed at bringing him or her closer, shall be punished by one to three who specifies that such an act would, for example, be an act that tran- years’ imprisonment or a fine of twelve to twenty-four months, without scends simple virtual contact. prejudice to the penalties corresponding to the offences, if any, commit- 18 L.M. Díaz Cortés, “Aproximación criminológica y político criminal ted. The penalties shall be imposed in their upper half when the approach del contacto TICS preordenado a la actividad sexual con menores en el is obtained by means of coercion, intimidation or deception. 2. Anyone Código penal español –Art. 183 bis CP”, (2012) 8 Revista de Derecho Penal who, through the Internet, telephone or any other information and com- y Criminología, 289, 290. munication technology, contacts a person under the age of 16 and engages 19 This is the view held by the criminal doctrine. On this matter, see in acts intended to deceive him or her into providing pornographic material E. Orts Berenguer, Derecho Penal. Parte Especial. Gonzalez Cussac, J.L. or showing pornographic images depicting or featuring a minor, shall be (Coord.), 2016, p. 228. punished by imprisonment for a term of six months to two years. 20 J.M. Tamarit Sumalla, “Los delitos sexuales...”, op. cit. (n. 14), p. 351.

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