The Development of European Criminal Procedure Law

Home , Data Retention Directive, EuroVoc, Schengen Area

eucrim ISSUE / ÉDITION / AUSGABE 1–2 / 2009 THE EUROPEAN CRIMINAL LAW ASSOCIATIONS‘ FORUM

SUCCESSOR TO AGON

Focus: The Development of European Criminal Procedure Law Dossier particulier: Le développement du droit de la procédure pénale européen Schwerpunktthema: Die Entwicklung des europäischen Strafprozessrechts

Rules on the Application of ne bis in idem in the EU Dr. Katalin Ligeti

Mutual Recognition of Judicial Decisions in Criminal Matters with Regard to Probation Measures and Alternative Sanctions Hanna Kuczyńska

Vers la mort annoncée du juge d’instruction en France Elisabeth Schneider

The Constitution says yes [but …] to the Lisbon Treaty Dr. Marianne Wade 1–2 / 2009 ISSUE / ÉDITION / AUSGABE

Contents

News* Articles

European Union Cooperation The Development of European 14 Customs Cooperation Criminal Procedure Law Foundations 15 Judicial Cooperation 2 Community Powers in Criminal 17 European Arrest Warrant Matters – Data Retention 19 European Supervision Order 37 Rules on the Application of ne bis in idem 3 Community Powers in Criminal 19 Criminal Records in the EU Matters – Data Bases 20 E-Justice Dr. Katalin Ligeti 3 Schengen 23 Law Enforcement Cooperation 4 Legislation 43 Mutual Recognition of Judicial Decisions in Criminal Matters with Regard to Probation Institutions Council of Europe Measures and Alternative Sanctions 5 OLAF Hanna Kuczyńska 5 Europol Foundations 6 Eurojust 25 60th Anniversary of Council 49 Vers la mort annoncée du juge d’instruction of Europe en France Specific Areas of Crime/ 26 Relations between the Council Elisabeth Schneider Substantive Criminal Law of Europe and the European Union 7 Counterfeiting & Piracy 27 European Court of Human Rights 57 The Constitution says yes [but …] 7 Organised Crime 29 Human Rights and Legal Affairs to the Lisbon Treaty 8 Environmental Crime Dr. Marianne Wade 8 Illegal Employment Specific Areas of Crime 30 Corruption Procedural Criminal Law 31 Money Laundering Imprint 9 Procedural Safeguards 33 Cybercrime 10 Data Protection 11 Ne bis in idem Procedural Criminal Law 13 Victim Protection 14 Freezing of Assets Legislation

* News contain internet links referring to more detailed information. These links can be easily accessed either by clicking on the respective ID-number of the desired link in the online-journal or – for print version readers – by accessing our webpage www.mpicc.de/eucrim/search.php and then entering the ID-number of the link in the search form. Editorial

Dear Readers,

I am delighted to contribute the editorial to this new issue of of this youth, such a decision was not eucrim, which covers different aspects of European criminal taken when the European Arrest War- procedural law and judicial cooperation within the European rant was issued. The Polish Supreme Union. Cooperation in criminal matters among the Member Court held that, despite the lack of any States tackles various questions of a different nature, spanning instigated criminal proceedings, the legal, political, theoretical, and practical issues. In contrary to warrant could be executed, provided the practice in civil matters, cooperation in criminal matters that the surrender of the accused is for proves to be more difficult, mainly due to the “traditional” the purpose of conducting criminal approach linked with the sovereignty of each State in respect non-juvenile proceedings. of its criminal legislation. However, ideas that have been adopted and put into practice in the European Communities The second case in 2009 was even and European Union over the past few decades force us to look more difficult, in particular due to dif- at the issue of sovereignty in criminal law in a new way. ferent approaches adopted by different EU Member States. It concerned the Prof. Lech K. Paprzycki Although unintended, the free movement of persons and goods procedure of returning a sentenced in the European Community unfortunately also allows crimi- offender to the executing Member State for the purpose of nals to move more easily and freely across the borders of the serving the sentence passed in the issuing Member State, as European Union Member States and to set up or move their set forth in Article 5.3 of the Framework Decision on the Eu- criminal enterprises wherever and whenever it proves most ef- ropean Arrest Warrant. The Supreme Court held that Article fective. Efforts must be undertaken on the part of each Mem- 607s § 4 of the Polish Code of Criminal Procedure excludes ber State, not only individually but also collectively, in order exequatur procedures, as set forth in the 1983 Council of to effectively safeguard the underlying policies of the EU and Europe Convention on the transfer of sentenced persons and fight cross-border crime. in Polish legislation.

The process of achieving these aims can be divided into three The decisions in these two cases exemplify how Poland gave levels: European legislation, national legislation, and practi- the idea of mutual recognition of judicial decisions in criminal cal cooperation. The first two levels assume political good matters its widest possible meaning. The fundamental pillars will. The third one rests on good faith and mutual trust among of both decisions are based on the belief and trust that Polish or the Member States. Each level is as important as the other, any other EU Member State’s cases abroad will be treated with although the efficacy of enacted laws will always be measured the same broad approach to the idea of mutual recognition. in practice. For this reason, despite its legislative origins, the level and standard of cooperation among EU Member States in On balance, the philosophy of the traditional approach to sover- criminal matters will always rest with judges, prosecutors, the eignty in criminal law must be reviewed in order to effectively police, and other law enforcement officers. fight the increasing number of EU-wide crimes. Maintaining and developing the EU as an area of freedom, security and In this context, the implications of the EU approach to the in- justice depends on good faith among the Member States. The terpretation of national legislation can never be underestimat- phrase “area of freedom, security and justice” means nothing ed. I would like to draw your attention to two cases relating if not supplemented with “mutual trust”. This applies equally to the European Arrest Warrant that were heard by the Polish to all aspects of judicial cooperation in criminal matters. Supreme Court. The first case in 2006 concerned a Polish national sought by Belgian authorities under a charge of murder. He was still a juvenile according to Belgian law and, although Professor Lech K. Paprzycki the Belgian legislation on juveniles allowed a category of ju- President of the Supreme Court of the Republic of Poland, veniles to be tried as adults under the criminal law, in respect Criminal Law Chamber

eucrim 1–2 / 2009 | 1 News Actualités / Kurzmeldungen

reaching interference may be justified on economic grounds. In its findings, the Court first of all noted that the action brought by Ireland relates solely to the choice of legal basis and not to any possible infringement of fundamental rights arising from inter- European Union ference with the exercise of the right to Reported by Sabrina Staats* and Thomas Wahl** privacy contained in Directive 2006/24/ EC. As a result, requests from the Euro- pean Parliament and NGOs to the Court Foundations other provision of the EC Treaty would to clear up violations of human rights by have been capable of providing an ap- the data retention Directive were thwart- propriate legal basis for the Directive ed (cf. eucrim 1-2/2008, pp. 2-3). Community Powers in Criminal since the predominant objective of the Regarding the Irish arguments on Matters – Data Retention Directive is to facilitate the investi- the legal basis, the Court found that the gation, detection, and prosecution of evidence submitted to the Court showed ECJ: Data Retention Directive Complies crime, including terrorism. The provi- that the national measures regarding With EC Law sions of Directive 2006/24/EC would data retention differed substantially, On 10 February 2009, the ECJ decided not address defects in the internal mar- particularly in respect of the nature of on the Irish action seeking the annul- ket. Therefore, the only legal basis, on the data retained and the periods of data ment of Directive 2006/24/EC on the re- which the measures contained in Direc- retention. Also, the Court found that the tention of data generated or processed in tive 2006/24/EC could validly be based, obligations relating to data retention connection with the provision of public- would be Title VI of the EU Treaty, in have significant economic implications ly available electronic communications particular Arts. 30 TEU, 31(1) TEU and for service providers in so far as they services or that of public communica- 34(2)(b) TEU. The obligations designed may involve substantial investment and tions networks. to ensure that data are available for the operating costs. Thus, the differences Ireland claimed that the Court should investigation, detection, and prosecution between the national rules adopted on annul Directive 2006/24/EC on the of criminal offences would fall within data retention were liable to have a di- grounds that it was not adopted on an an area that may only be the subject of rect impact on the functioning of the appropriate legal basis. a measure based on Title VI of the EU internal market. In the Court’s opinion, In this long-awaited decision (see Treaty and cannot be adopted under this situation justified the Community eucrim 1-2/2006, p. 4), the Court or- Community competence. legislature in safeguarding the proper dered dismissal of the Irish action and Slovakia, which was granted the right decided that Directive 2006/24/EC re- to intervene in support of Ireland during * If not stated otherwise, the news in the follow- lates predominantly to the functioning the proceedings, added that the retention ing sections were reported by Sabrina Staats: Foundations; Institutions; Specific Areas of Crime of the internal market and therefore had of personal data to the extent required (Environmental Crime, Illegal Employment); Pro- to be adopted on the basis of Art. 95 EC. by Directive 2006/24/EC amounts to an cedural Criminal Law (Procedural Safeguards, The Court herewith followed the opin- extensive interference in the rights of Data Protection). ** If not stated otherwise, the news in the fol- ion of the Advocate General (see eucrim individuals to privacy as provided for lowing sections were reported by Thomas Wahl: 1-2/2008, p. 2). by Art. 8 of the European Convention Specific Areas of Crime (Counterfeiting & Piracy, Organised Crime); Procedural Criminal Law (Ne During the proceedings, Ireland had on Human Rights (ECHR) and that it bis in idem, Victim Protection, Freezing of Assets); argued that neither Art. 95 TEC nor any would be questionable whether such far- Cooperation.

2 | eucrim 1–2 / 2009 Foundations functioning of the internal market by competence of the Community legisla- The UK considers the measure entire- adopting harmonised rules. ture, the Commission reserved the right ly concerned with the sharing of infor- As to the substantive content of the to submit an own proposal for a directive mation for the purpose of the prevention, Directive’s measures, the Court found on data retention based on Art. 95 TEC. detection, and investigation of terrorist that the provisions are limited to the ac- The Commission did this on 21 Septem- offences and other serious offences, which tivities of service providers and do not ber 2005 (COM(2005) 438 final). is also reflected by the Council’s choice govern access to data or the use thereof On 14 December 2005, the Euro- of legal basis, namely Arts. 30 (1)(b) by the police or judicial authorities of pean Parliament delivered its opinion, and 34 (2)(c) TEU. The UK is therefore the Member States. overall approving the Commission’s seeking the annulment of those provi- Directive 2006/24/EC therefore regu- proposal for the directive whereas the sions of the measure that have the effect lates operations which are independent MEPs have strongly opposed the proof excluding the UK from participat- of the implementation of any police and posed framework decision earlier (see ing in the application of the VIS Police judicial cooperation in criminal matters. eucrim 1-2/2006, p. 4). The Council fi- Access Decision. The Commission has It harmonises neither the issue of access nally adopted Directive 2006/24/EC by been granted leave to intervene in sup- to data by the competent national law qualified majority voting at its session port of the Council by the Court in April enforcement authorities nor that relating on 21 February 2006. Ireland and Slo- 2009. to the use and exchange of such data be- vakia voted against the adoption of the eucrim ID=0901002 tween those authorities. These matters, Directive. which principally fall within the area eucrim ID=0901001 covered by Title VI of the EU Treaty, have been excluded from the provisions Schengen of the Directive, as is stated, in particular, in recital 25 and Art. 4 of the Direc- Community Powers in Criminal SIS II Still Up in the Air tive. Matters – Data Bases At the JHA meeting from 4 to 5 June It will be interesting to see how this 2009, the Council held a debate on fur- decision will influence the pending cas- UK’s Action against Access of Law ther steps in the future of the Schengen es before the constitutional courts of the Enforcement Authorities to the Visa Information System “SIS II”. The JHA Member States (see eucrim 1-2/2008, Information System Council adopted an exit clause which, p. 3). On 10 November 2008, the United in case two tests (“milestones”) demon- Background Information: On 28 April Kingdom brought an action against the strate malfunction of SIS II, allows the 2004, France, Ireland, Sweden and the Council regarding the annulment of Commission to stop the current SIS II United Kingdom submitted to the Coun- Council Decision 2008/633/JHA regard- and continue with other options to de- cil of the European Union a proposal ing access for consultation of the Visa velop SIS II (unless the Council decides for a framework decision to be adopted Information System (VIS) by designat- otherwise within a period of two months). on the basis of Arts. 31(1)(c) and 34(2) ed authorities of Member States and Eu- Although, for now, the development (b) TEU. The subject of this proposal ropol for the purpose of the prevention, of SIS II will continue with the current was the retention of data processed and detection, and investigation of terrorist SIS II project, the Council stressed the stored in connection with the provision offences and other serious criminal of- ability of the alternative advanced SIS I of publicly available electronic commu- fences (Case C-482/08). The UK has plus scenario to realise the objectives of nications services or data in public com- been denied the right to take part in the SIS II (for the development of SIS II and munication networks for the purpose of adoption of this VIS Police Access Deci- SIS I, see also eucrim 1-2/2008, p. 8 for the prevention, investigation, detection, sion because the Council considered the further references). and prosecution of criminal offences, in- measure to be a development of provi- eucrim ID=0901003 cluding terrorism. sions on the common visa policy of the The Commission then stated that Schengen acquis, in which the UK does The Council’s Struggle with SIS II Art. 47 TEU did not allow an instrument not take part. The UK, however, argues The discussions about the future of the based on the EU Treaty to affect the ac- that the VIS Police Access Decision is a SIS II project have been going on for quis communautaire, in this case Direc- police cooperation measure rather than some time now. At the JHA meeting on tives 95/46/EC and 2002/58/EC. Taking a development of the common visa pol- 26 and 27 February 2009, the Council the view that the determination of the icy, since neither aim nor content of the adopted a set of conclusions regarding categories of data to be retained and the VIS Police Access Decision relate to the the modernisation of SIS II. The Coun- relevant retention period fell within the common visa policy. cil took note of the problems that per-

eucrim 1–2 / 2009 | 3 NEWS – European Union sist in the current SIS II project and the the Commission adopted a legislative and annual programmes of both unan- Commission’s view that all outstanding package proposing the setting up of an nounced and announced on-site visits in issues could be resolved with a major Agency for the long term operational the various Member States. The evalu- redesign of the SIS II application. As to management of the Schengen Informa- ations themselves can be based on re- the adopted conclusions, the Council de- tion System (SIS II), the Visa Informa- plies to questionnaires, on-site visits or a manded, inter alia, the implementation of tion System (VIS), EURODAC and combination of both. On-site visits shall a SIS II analysis and repair plan as well other large-scale IT systems in the Area be carried out by teams of 8 national as the implementation of a comprehen- of Freedom, Security and Justice (AFSJ) experts appointed by the Commission. sive SIS II programme management ap- on 24 June 2009. The legislative pack- Experts of Europol or Eurojust may also proach. It has also already stated that the age is composed of a first pillar Regu- participate in the evaluation as observ- date for migration from SIS I to SIS II, lation establishing the Agency, a third ers. In the context of on-site visits, the which was set for September 2009, is no pillar Decision and a horizontal Com- Commission considers on-the-spot eval- longer realistic. munication providing a quick overview uations particularly necessary regarding eucrim ID=0901004 of the legislative proposals. judicial cooperation in criminal matters On 20 March 2009, the Czech Presi- The main tasks of the Agency will and data protection issues. dency introduced a paper on the imple- be to fulfil the operational management Following each evaluation, the Com- mentation of the February JHA conclu- tasks for SIS II, VIS and EURODAC and mission shall draw up a report on the sions. Basically, the paper describes the to adopt the necessary security meas- Member State concerned, based on the state of play of the ongoing measures ures, to report and to publish statistics as findings of the on-site visit and the ques- to improve SIS II and gives a line of well as to initiate and monitor SIS II and tionnaire as relevant. The Member State approach for the months to come, e.g., VIS related training. The Agency is to concerned then has a certain period of carrying out a revised testing approach become operational as of 2012. time to develop an action plan on how and developing alternative technical eucrim ID=0901007 to remedy the identified weaknesses. scenarios, such as the advancement and Finally, the Commission shall present adjustment of SIS I. Commission Proposes New Schengen a yearly report to the Council and the eucrim ID=0901005 Evaluation System European Parliament on the evaluations On 4 March 2009, the Commission ad- carried out. Barrot: Comments on the Modernisation opted a proposal for a Council Regula- eucrim ID=0901008 of SIS II tion on the establishment of an evalua- Before the JHA meeting in February tion mechanism to verify the application 2009, Jacques Barrot, the Commissioner of the Schengen acquis. The main objec- responsible for Justice, Freedom and Se- tive of the proposed Regulation is to es- Legislation curity, spoke at the 12th European Police tablish a legal framework for evaluating Congress on 10 and 11 February 2009 in the correct application of those elements Progress Report on Better Regulation Berlin and signalised a modernisation of the Schengen acquis that form part in the EU of SIS II. Barrot especially requested an of Community law (COM (2009)102 On 28 January 2009, the Commission extension of Europol investigators’ com- final). adopted a Commission Working Docu- petences, e.g., the authority to work at It goes together with the proposal for ment providing information on the the crime scene with mobile offices or to a Council Decision on the establishment progress achieved regarding the strategy operate more closely together with na- of an evaluation mechanism to monitor for simplifying the regulatory environ- tional police authorities. He would also the application of those elements of the ment. The aim of the Commission’s like the Member States’ police authori- Schengen acquis that are part of third simplification programme is to review ties to have full access to EURODAC, pillar EU law (COM (2009)105 final). the EU’s acquis in view of the relevance, the database for fingerprints of asylum- This double evaluation mechanism effectiveness, and proportionality of the seekers. is designed to maintain mutual trust be- legislation in place. eucrim ID=0901006 tween Member States in their capacity The simplification programme now to effectively and efficiently apply the contains a total of 185 initiatives, of Commission Proposes Agency for accompanying measures allowing the which 132 have already been adopted by Operational Management of SIS II creation of an area without internal bor- the Commission. Up to now, the legisla- and Other Databases in the AFSJ ders. tive process has been finalised for 75 of Following the above-mentioned Coun- The proposals introduce a clear pro- the 132 initiatives. Since 2005, approx. cil debate held in early June 2009, gramming, providing for multi-annual 1300 legal acts, representing almost

4 | eucrim 1–2 / 2009 Institutions

10% of the acquis, have been proposed both the EU and the World Bank are in- creation in 1999 and over 300 persons for removal. volved and to exchange, within the legal have been sentenced by criminal courts The report not only describes the framework of institutions, information as a result of OLAF’s investigations. Re- previous initiatives; it also gives an out- and intelligence. garding the financial benefit of its work, look on initiatives in the pipeline for eucrim ID=0901011 OLAF comes off extremely well in 2008 2009, e.g., the modernisation of Regula- with a sum exceeding 460 million euros tion (EC) No. 44/2001 (on jurisdiction CFI Backs OLAF Investigation being recorded as recovered in connec- and the recognition and enforcement of On 1 July 2009, the Court of First In- tion with OLAF cases and only spending judgements in civil and commercial mat- stance (CFI) delivered a judgement in about 53 million euros on operational ters) in order to facilitate the recognition Case T-259/05, confirming a Commis- costs over the same period of time. and enforcement of judicial decisions. sion decision to make Spain reimburse eucrim ID=0901013 For the programme on better regulation more than 110 million Euros wrongly in the EU, see also eucrim 3-4/2007, paid out to companies in the flax sector pp. 81-82. – a part of the EC’s common agricul- eucrim ID=0901009 tural policy. The Commission’s decision Europol was based upon an OLAF investigation carried out from May 2000 until March Europol’s 10th Anniversary 2001 which revealed widespread irregu- On 1 July 2009, Europol celebrated its larities in the Spanish flax sector with a 10th anniversary. Rob Wainwright, the Institutions significant amount of EU subsidies for new Director of Europol, highlighted flax production being wrongly disbursed. Europol’s close cooperation with its The Commission then decided to claim partners and the Europol information OLAF back 113.4 million Euros, an amount system with extensive data sets. In the which represents 100 % of all EU subsi- future, Europol will continue to place OLAF’s 10th Anniversary Web Page dies paid out by Spain to its flax sector in emphasis on the exchange of informa- On the occasion of the 10th anniver- 1998/99 and 1999/2000. The CFI partic- tion and intelligence among law enforce- sary of the European Anti-Fraud Office ularly backed OLAF’s investigations by ment agencies. (OLAF), it has set up a web page con- rejecting counter-arguments from Spain. On the occasion of the anniversary, taining information on OLAF and its OLAF undertook a series of on-the-spot Europol provides additional information 10th anniversary events. For the 10th checks in Spain and discovered wide- on its activities during the past 10 years anniversary of OLAF in 2009, see also spread irregularities in the Spanish flax on the Europol web page, including an the special anniversary edition of eucrim sector. For the regular Commission’s anniversary book and an anniversary 3-4/2008. This special edition is also decisions to reclaim expenditure under poster. available together with other communi- the Common Agricultural Policy (CAP), eucrim ID=0901014 cation material via the web page. cf. eucrim 1-2/2008, pp. 19-20 for fur- OLAF was founded in 1999 as an in- ther references. For the legal framework Establishment of Europol dependent service for the EU in charge of the Commission’s power to investi- as an EU Agency of the fight against fraud and corruption gate irregularities in specific sectors, cf. On 6 April 2009, the JHA Council adopt- affecting the EU’s financial interests. the article by Wahl, eucrim 3-4/2008, ed the decision establishing Europol as a eucrim ID=0901010 pp. 120-127 (in German). Community agency as from 1 January eucrim ID=0901012 2010 (see eucrim 1-2/2008, p. 13). This Cooperation Agreement between OLAF change of status aims at improving the and the World Bank OLAF Publishes Annual Activity Report operative and administrative functioning On 30 June 2009, OLAF and the World On 9 July 2009, OLAF presented its new of Europol. In addition, Europol’s man- Bank’s Integrity Vice-Presidency signed Annual Activity Report which illustrates date will be extended to serious crime, a cooperation agreement regarding the its work inside and outside the EU in the which is not strictly related to organised joint fight against fraud affecting devel- form of case studies and statistical tables. crime. Furthermore, the role of the Par- opment aid. The World Bank is the trus- The 2008 report puts a particular focus liament regarding the control of Europol tee of significant funds from the EU. The on the judicial follow-up of OLAF’s in- will increase and an enhancement of signed agreement will enable investiga- vestigations. While 204 new cases have democratic control over Europol at the tors from both sides to carry out joint in- been opened during 2008, OLAF has European level is intended. vestigations where common interests of opened more than 3000 cases since its eucrim ID=0901015

eucrim 1–2 / 2009 | 5 NEWS – European Union

Appointment of New Director of personal data from the authorisation The Ombudsman found that Europol On 6 April 2009, the Council adopted at to enter into negotiations, so it will be had settled the matter and satisfied the the JHA meeting a decision appointing interesting to see the outcome of the fu- complainant. The Ombudsman therefore Mr. Rob Wainwright (UK) as the new di- ture negotiations. closed the case. rector of Europol for a four-year period. eucrim ID=0901019 eucrim ID=0901020 Mr. Wainwright replaces Mr. Max- Peter Ratzel (Germany), whose mandate Europol: Dispute on Access as the director of Europol expired on 15 to Documents Settled April 2009. Before he was appointed as On 21 November 2008, the European Eurojust the new director of Europol, Mr. Wain- Ombudsman, P. Nikiforos Diamandouros, wright was the Chief of the International delivered a decision closing his inquiry Eurojust – Europol Cooperation Department of the UK Serious Organ- into complaint 111/2008/TS against Eu- Agreement ised Crime Agency (SOCA). ropol. The complainant, a Danish jour- The Council has adopted a revised co- eucrim ID=0901016 nalist, had been refused access to docu- operation agreement between Eurojust ments, particularly documents referred and Europol. The agreement has been Europol – Russia to in the document entitled “The Strat- approved by the College of Eurojust as The new Europol leader, Rob Wain- egy for Europol”. The complainant had well as by the Joint Supervisory Body. wright, announced that one of his first filed his application for access on 6 Sep- The agreement is aimed at establishing aims is to reach a new agreement with tember 2007 and Europol replied over and maintaining close cooperation be- Russia that would allow for a better 3 months later, on 20 December 2007. The tween Eurojust and Europol in order to exchange of information on joint anti- complainant then submitted a confirma- increase their effectiveness in combating crime operations, including the ex- tory application to Europol on 8 January serious forms of international crime. In change of personal data. The possible 2008 to which Europol did not reply. In particular, this will be achieved through new Europol-Russia cooperation agree- mid-February 2008, an official from Eu- the exchange of operational, strategic, ment on information exchange was also ropol called the complainant and apolo- and technical information as well as the on the agenda of the JHA Council meet- gised for the fact that it had not replied coordination of activities. The coopera- ing of 6 April 2009 and the EU-Russia to his confirmatory application within tion will take place with due regard to troika meeting in Khabarovsk, Russia, the stipulated time frame. On 8 January transparency, complementarity of tasks, from 21 to 22 May 2009. Currently, re- 2008, the complainant turned to the Om- and coordination of efforts. lations between Europol and Russia are budsman, claiming that Europol should eucrim ID=0901021 based on an agreement of 2003, which first of all review its administrative prac- does not, however, include the exchange tice regarding its handling of (initial and Eurojust Attached to FATF as Observer of personal data. confirmatory) applications for access to In June 2009, the Financial Action Task eucrim ID=0901017 documents since Europol’s rules on ac- Force (FATF) granted Eurojust observer cess to documents provide that it shall status to the FATF. Eurojust is now part Europol – Israel reply to both initial and confirmatory ac- of other international organisations, in- At the JHA meeting on 6 April 2009, cess applications within 30 working days cluding Europol, which are attached to the council adopted a decision authoris- following registration. Furthermore, he the FATF as observers. The FATF and ing the director of Europol to enter into claimed that Europol should grant ac- Eurojust underscored that closer co- negotiations with Israel with a view to cess to the requested documents. operation between the two bodies will concluding an operational cooperation On 8 May 2008, Europol provided build on existing synergies in enforce- agreement. the complainant with the documents and ment action directed at those who laun- eucrim ID=0901018 information he had requested and regret- der funds and finance terrorism. ted the delay in answering his request Mr. Carlos Zeyen, member of the Europol – India for access to documents. Counter-Terrorism and Financial and At the JHA meeting on 26 February In the course of the Ombudsman’s in- Economic Crime teams at Eurojust, 2009, the Council adopted a decision quiry, Europol had expressly apologised and National Member for Luxembourg, to add India to the list of countries with to the complainant for the delays and the commented: “Obtaining FATF observer which the director of Europol is author- complainant accepted the apology. Eu- status is a milestone in Eurojust’s de- ised to start negotiations on cooperation ropol has furthermore assured that it will velopment. We will now benefit directly agreements. In its decision, the Council take measures to avoid similar short- from the new policies and initiatives pro- has not explicitly excluded the exchange comings in the future. moted by FATF. Its mutual evaluations

6 | eucrim 1–2 / 2009 Specific Areas of Crime / Substantive Criminal Law and peer reviews will help us to detect ing figures on the scope of the problem; emerging vulnerabilities, new threats  Better cooperation between law en- Fighting Financial Crime in Europe: Practical Aspects and possible gaps and problems in our forcement authorities; of a Pan-European Criminal Law common field of competence. Eurojust  Exploring and sharing successful pri- 21–22 September 2009, Cambridge fully supports the implementation of the vate sector strategies; FATF 40+9 Recommendations and in  Raising public awareness. A two-day conference from 21 to particular those dealing with criminal The European Observatory on Coun- 22 September 2009 will examine the legal aspects of co-operation between justice and international cooperation. terfeiting and Piracy was officially OLAF and national anti fraud agen- Eurojust offers FATF its accumulated launched on 2 April 2009 at the second cies and between national anti fraud experience and knowledge acquired High Level Conference on Counterfeit- agencies within the EU. Furthermore, through its dealings with operational ing and Piracy. Internal Market and Serv- the conference will consider the law cases in money laundering for purposes ices Commissioner Charlie McCreevy and administrative practices and procedural guarantees relating to OLAF of terrorist financing and can contribute noted: “In the fight against IPR crime investigations and the effectiveness to FATF the identification of new trends our challenge is to complement the le- of EU instruments, formal and informal and threats in those areas.” gal framework with strategies designed co-operative arrangements, partner- For more background information on to make an impact on the ground. I am ships and networks currently available to combat economic crime, particu- the FATF, see eucrim 1-2/2007, p. 44. deeply convinced that the European Ob- larly fraud affecting the EU’s financial For other important decisions of the servatory on Counterfeiting and Piracy interests. FATF regarding the protection of the in- gives us this start.” The objective of the conference is to ternational financial system from abuse eucrim ID=0901023 stimulate debate on the practical working relationships between OLAF and by criminals, see the following ID. national investigation agencies; the eucrim ID=0901022 Cheaper and Easier EU-Wide range and effectiveness of strategies Trademark Protection for combating economic crime col- The European Commission and EU lectively and in partnership with third countries; addressing the international Member States decided to lower fur- nature of criminal finance and profit ther the fees payable to the Community and the hitherto untapped resources Specific Areas of Crime / agency responsible for granting EU- of the private sector. wide trademark rights, OHIM (Office The conference is organised by the Substantive Criminal Law Centre for European Legal Studies, for Harmonisation in the Internal Mar- University of Cambridge and the Unit- ket, located in Alicante, Spain). More ed Kingdom Association to Combat Counterfeiting & Piracy over, the registration procedure has been Fraud in Europe. The conference is co- simplified. This measure, which follows financed by the Hercule-Programme. European Observatory on Counterfeiting a first decrease in 2005, will make trade- More information about the conference is available via the following In- and Piracy Launched mark protection much more inexpensive ternet site: By means of a new European Observa- and easier to obtain for businesses operat- eucrim ID=0901026 tory on Counterfeiting and Piracy, the ing in the EU single market, saving them European Commission aims at improv- some 60 million euros a year. The meas- ing the fight against fake goods. Against ure came into force on 1 May 2009. the background of the dramatic increase eucrim ID=0901024 garian police, Spanish law enforcement in and economic losses from counterfeit- authorities, Europol, and Eurojust. ing and piracy over the past ten years, Practice: Counterfeiters Nabbed by eucrim ID=0901025 the specialised Observatory is designed Joint Investigation Team to counter this phenomenon. The over- On 2 July 2009, Europol and Eurojust all goal of the Observatory is to produce were able to announce the success- continuous, objective assessments and ful disbanding of a criminal group of Organised Crime up-to-date research that lead to the ex- 17 persons who were behind the distri- change of best practices and knowledge bution of more than 82,000 counterfeit Council Sets Priorities for Combating among policymakers, industry experts, euro notes. The value of the counterfeits Organised Crime and enforcement bodies. The Observa- is estimated at 16 million euros. The On 4 June 2009, the Justice and Home tory will have a flexible and light struc- group was dismantled in Bulgaria. This Affairs Council adopted conclusions on ture. Its main tasks will be: successful blow was the result of a Joint the setting of the EU’s priorities for the  Obtaining better information, includ- Investigation Team involving the Bul- fight against organised crime. The con-

eucrim 1–2 / 2009 | 7 NEWS – European Union

only address the Member States, but also water, the sum of the discharges may be Fraud Prosecution & Asset Recovery provide for a detailed list of tasks for all considered a criminal offence;  15–16 September 2009, Central London relevant EU bodies, agencies, and work- The inciting, aiding, and abetting of ing groups, such as the Commission, the an offence committed with intent shall A two-day conference from 15 to Council itself, Europol, Eurojust, and the be made punishable as a criminal of- 16 September 2009 at the Holiday Inn working groups of customs authorities. fence by the Member States; Bloomsbury, London WC 1, will provide for an update on fraud prosecution and They must take account the priorities  A new article was incorporated, stipu- deliver expert advice on recovering set by the Council in its conclusions and lating that the Member States shall take client assets. incorporate them in their strategic and the necessary measures to ensure that le- The Lawyer’s Fraud Prosecution & As- available operational planning, working gal persons can be held liable for crimi- set Recovery conference will show programmes, budgets, annual reporting, nal offences committed for their benefit how the increased power and appetite of UK regulators and statutory bodies and external relations. by any natural person acting either indi- will affect how they pursue and punish Besides the Council conclusions, the vidually or as part of the legal person. fraudsters. Participants can hear how following ID also makes reference to the The natural person must have a “leading they can best navigate through the cur- web site of Europol where the OCTA position” within the legal person, which rent regulatory environment to tackle report has been published. For OCTA may result from the power of representa- and prosecute serious and complex frauds with cross-border effects. and ROCTA, see also eucrim 1-2/2008, tion of the legal person or the authority Highlights include: pp. 23-24. to take decisions on behalf of the legal  An update from Richard Alderman, eucrim ID=0901027 person or an authority to exercise con- Director, SFO on the changing ap- trol within the legal person. Legal per- proach of the Serious Fraud Office;  A strategic view of anti-fraud regu- sons can also be held liable where lack lations in the US – recent develop- of supervision or control has made the ments and international reach with Environmental Crime commission of an offence for the benefit Joan McKown, Chief Counsel, Division of that legal person possible. of Enforcement, SEC; Ship-Source Pollution – State of Play eucrim ID=0901029  Mike Bowron, Commissioner, City of London Police will address how UK ini- The Council and the European Par- tiatives are coordinated on the ground liament (EP) have reached a political to combat fraud; agreement to amend Directive 2005/35/  A mock trial based on a S25 Civil Ju- EC on ship-source pollution and the in- Illegal Employment risdiction and Judgments Act continu- troduction of penalties for infringements ation/discharge application – prepared by Philip Jones QC and Andrew Moran (COM (2008) 134; see eucrim 3-4/2007, Sanctions against Employers of Serle Court and judged by the Hon- p. 77 and eucrim 1-2/2008, p. 25) which of Illegally Staying Third-Country ourable Mr. Justice Briggs. has been announced at the JHA meeting Nationals Participation is subject to a participa- on 4 and 5 June 2009. The Council in- The European Parliament and the Coun- tion fee. eucrim subscribers may be offered a discount by the organisers. For tends to formally adopt the instrument at cil finally adopted the directive aimed a full speaker line up, the agenda and a later stage. at fighting illegal immigration by pro- participation conditions, please refer eucrim ID=0901028 hibiting the employment of illegally to the following website: The political agreement is based upon staying third-country nationals, laying eucrim ID=0901030 a legislative resolution published on down minimum common standards on 5 May 2009 by the EP. The EP made sanctions and measures to be applied in several amendments to the proposed Di- the Member States against employers rective, inter alia: who infringe that prohibition (Direc- clusions are based on the Europol 2009  Illicit ship source discharges of pol- tive 2009/52/EC). The new rules seek Organised Threat Assessment (OCTA) luting substances will be considered a to fight abuses by employers making and the Europol 2008 Russian Organ- criminal offence if they have been emp- contracts with illegally-staying third- ised Threat Assessment report (ROC- tied with intent, recklessly, or as a result country nationals, providing them in the TA). The Council considers the OCTA, of serious negligence and if they result in labour market with low salaries and poor ROCTA, and present conclusions to be a deterioration of the water quality. Dis- labour conditions. important input that should be incorpo- charges that do not cause deterioration The Directive contains minimum rated into priorities set by the Member in the quality of water will be referred to sanctions against illegal employment of States. as minor cases. If repeated minor cases third-country nationals to be imposed on The conclusions, however, do not in conjunction result in a deterioration of the employers. These companies shall be

8 | eucrim 1–2 / 2009 Procedural Criminal Law obliged to ensure themselves that their agree on a proposal put forward by the provided with interpretation during the employees are legally staying in the Commission to the same effect in 2004. extradition proceedings, and the transla- EU, e.g., by having them present valid Unlike the 2004 proposal that intended tion of the EAW should be made obliga- residence permits. If these companies do to simultaneously set out six procedur- tory if the person does not understand or not fulfil their obligation or purposely al rights, this proposal only focuses on speak the language of the proceedings. employ illegally staying third-nationals, one set of rights, namely those relating Furthermore, the draft FD features they may be excluded from being enti- to interpretation and translation. These an obligation for Member States to of- tled to public benefits, aid, or subsidies rights were widely undisputed in 2007. fer training to judges, lawyers, and other for up to five years or from participating The Commission announced that other court staff to make sure that the defen- in a public contract for the same amount sets of suspects’ rights may follow in dant understands the proceedings. of time. The Member States are to en- the context of the next multi-annual pro- It will be interesting to see whether sure that severe infringements of the gramme regarding Justice and Home Af- Member States that previously obstruct- prohibition to employ illegally staying fairs. The essential items of the proposal ed the framework decision on proce- third-state nationals are made punish- on the rights to interpretation and trans- dural safeguards in 2007 will say no to able as a criminal offence. lation are as follows: this draft FD, too. One main argument eucrim ID=0901031  Member States must ensure that any of the dissenting Member States at the The adopted Directive results from a person suspected or accused of a crimi- time was the missing legal basis for an political compromise by the Council and nal offence who does not speak or un- EU instrument to provide for procedur- the Parliament. Concerning this matter, derstand the language used in this con- al safeguards (Art. 31 (1c) TEU). The the EP had published a legislative resolu- text must be provided with interpretation Commission is trying to counter these tion on 19 February 2009 amending the throughout the entire proceedings. arguments by accompanying its propos- proposed directive (COM (2007)0249).  Member States must further ensure al with a detailed impact assessment in- For the Commission’s proposal and that, where necessary, legal advice re- cluding an extensive explanation of the the development of the Directive, see ceived throughout the criminal proceed- different options. also eucrim 1-2/2008, p. 26 and eucrim ings is interpreted for the suspect. By Thomas Wahl 1-2/2007, pp. 29-30).  Member States must ensure that a pro- eucrim ID=0901033 eucrim ID=0901032 cedure is in place to ascertain whether the suspect understands and speaks the Framework Decision on language of the criminal proceedings. Trials in Absentia Adopted  In addition, translations of essential The Council finally adopted the Frame- procedural documents will have to be work Decision (FD) on enhancing the Procedural Criminal Law provided. procedural rights of persons and foster-  The suspect or the lawyer may request ing the application of the principle of the translation of further documents, in- mutual recognition in respect of deci- Procedural Safeguards cluding written legal advice from the sions rendered in the absence of the per- suspect’s lawyer. son at the trial. Commission Makes New Attempt  Both interpretation and translation The FD alters various other framework to Set Minimum Procedural Rights must be of a sufficient quality and be decisions implementing the principle of Standards provided free of charge. mutual recognition of final judicial de- On 8 July 2009, the European Com-  Member States must provide for a cisions. As a consequence, the FD now mission tabled a proposal for a Council right of appeal against a decision finding consistently governs the issue of deci- Framework Decision that aims at es- that there is no need for interpretation or sions rendered following a trial at which tablishing common minimum standards translation. the person concerned did not appear in as regards the right to interpretation The scope of the proposed FD cov- person. The FD sets conditions under and translation in criminal proceed- ers all persons suspected or accused in which the recognition and execution of ings throughout the European Union respect of a criminal offence, from the a decision rendered (following a trial at (COM(2009) 338). With this proposal, moment the person is informed of this which the person concerned did not ap- the Commission has revamped work in and until final disposal of the case, in- pear in person) should not be refused. the field of minimum rules on proce- cluding any appeal. The establishment of certain procedural rights for defendants in criminal The FD explicitly also applies to Eu- dural guarantees – in particular, the right proceedings across the EU, after Mem- ropean Arrest Warrant cases. As a re- to retrial or appeal if the defendant was ber States ultimately failed in 2007 to sult, the person wanted has a right to be not properly informed about the original

eucrim 1–2 / 2009 | 9 NEWS – European Union trial and therefore had not appointed a eral state North-Rhine Westphalia, Ger- ferent from that of Union citizens when it lawyer – aims to allow the Member many had made the reference for a pre- comes to the objective of fighting crime, States to enforce each others’ judgments liminary ruling in proceedings between the use of the data in the register for the with greater confidence that the person’s Mr. Huber, an Austrian national who is purpose of fighting crime is contrary to rights of defense have been respected a resident in Germany, and the Federal the principle of non-discrimination and and thus expedites the proceedings. Republic of Germany, represented by hence contrary to Community law. Member States shall take the neces- the Federal Office for Migration and eucrim ID=0901036 sary measures to comply with the pro- Refugees. visions of the FD on trials in absentia Germany has established a central- ECJ on Balance between Access by 28 March 2011. For the FD, see ised register that contains certain per- to and Storage of Personal Data also eucrim 1-2/2008, p. 27 and eucrim sonal data on foreign nationals who On 7 May 2009, the ECJ rendered its 3-4/2007, p. 100. are residents of Germany for more than judgement in Case C-553/07 regarding eucrim ID=0901034 three months. The register is used for the reference for a preliminary ruling statistical purposes as well as by the po- related to the interpretation of Art. 12(a) European Lawyers Publish Manifesto lice and judicial authorities in exercising of the Data Protection Directive (95/46/ for the Right Kind of Justice for Europe their powers. Mr. Huber moved to Ger- EC). The reference was based on the fol- On 3 March 2009, the Council of Bars many in 1996 for business reasons and lowing facts: and Law Societies of Europe (CCBE) felt discriminated against by the central- In the context of proceedings be- published a four-point manifesto for “the ised register because a database of this tween Mr. Rijkeboer and the College right kind of justice” for Europe. The kind does not exist for German nation- “van burgemeester en wethouders van CCBE calls on EU decision-makers to: als. Mr. Huber therefore requested to be- Rotterdam” the College partially refused  Establish a Directorate-General for come deleted of the register. The Higher to grant Mr. Rijkeboer access to infor- “Justice” at the European Commission; Administrative Court, before which pro- mation on the disclosure of his personal  Guarantee the right of a defendant to ceedings were brought, asked the ECJ data to third parties during the two years consult a lawyer in full confidence; whether the German centralised register preceding his request for that informa-  Protect the procedural rights of sus- is compatible with Community law. tion. In a letter of 26 October 2005, Mr. pects and defendants in criminal pro- The ECJ decided that, in general, a Rijkeboer requested that the College no- ceedings in all Member States; system for processing personal data com- tifies him of all instances in which data  Strike the balance between liberty plies with Community law if it contains relating to him from the local-authority and security in legislation against terror- only the data necessary for the applica- personal records had, in the two years ism and organised crime. tion of legislation relating to the right of preceding the request, been disclosed The CCBE will especially promote the residence and its centralised nature ena- to third parties. He wished to know the manifesto throughout the Swedish presi- bles legislation to be more effectively identity of those persons and the content dency as well as the establishment of the applied as regards the right of residence of the data disclosed to them. Mr. Rijke- new Commission in the second half of of EU citizens who are not nationals of boer, who had moved to another munici- 2009. The CCBE represents through its the state of residence. However, such a pality, particularly wanted to know to members the Bars and Law Societies of register may not contain any informa- whom his former address had been dis- Europe, totalling over 700,000 lawyers tion other than what is necessary for closed. In decisions of 27 October and from all over the EU. that purpose. The ECJ states that it is for 29 November 2005, the College only eucrim ID=0901035 the national courts to ascertain whether complied with that request in part by no- these conditions have been satisfied and tifying him only of the data relating to whether the requirement of necessity, the period one year prior to his request. laid down by the Data Protection Direc- The data requested by Mr. Rijkeboer dat- Data Protection tive (95/46/EC), met. ing from more than one year prior to his As regards the present case, the request had been automatically erased in ECJ Sets Limits on the Processing and processing and storage of personal data accordance with national law. Storage of Personal Data for statistical purposes did not meet the The ECJ now had to decide on wheth- On 16 December 2008, the European requirement of necessity. The ECJ fur- er, pursuant to the Directive and, in par- Court of Justice (ECJ) delivered a judge- thermore found that, since the data of the ticular, to Art. 12(a) thereof, an individu- ment on centralised registers for foreign nationals of the Member State concerned al’s right of access to information on the nationals (Case C-524/06 Huber). The are not contained in the register whilst recipients or categories of recipients of Higher Administrative Court of the fed- the situation of nationals cannot be dif- personal data and on the content of the

10 | eucrim 1–2 / 2009 Procedural Criminal Law data communicated may be limited to a Ne bis in idem a decision must, in order to be consid- period of one year preceding a request ered a final disposal for the purposes of for access. ECJ: Art. 54 CISA Does Not Protect Art. 54 CISA, bring the criminal pro- The Court found that, with regard to Persons from Double Investigations ceedings to an end and definitively bar the right to access to information on the The European Court of Justice (ECJ) further prosecution. The suspension or- recipients or categories of recipients of had the opportunity to rule on the ap- der by the police authority such as that personal data and on the content of the plication ratione temporis and the inter- in question, by contrast, does not defini- data disclosed, the Directive itself does pretation of the concept of “finally dis- tively bring a prosecution to an end ac- not make clear whether that right con- posed of” of Art. 54 of the Convention cording to the ECJ, as a result of which cerns the past and, if so, precisely what Implementing the Schengen Agreement the condition of “finally disposed of” period in the past. However, if the right (CISA). Art. 54 hinders Member States within the meaning of Art. 54 CISA has did not concern the past, the data subject from prosecuting the same cases twice not been fulfilled. would not be in a position to effectively or more in the Schengen area (for the In this context, the ECJ argues as fol- exercise his right to have data presumed wording, cf. eucrim 1-2/2007, p. 33). lows: “It should be added that, while the unlawful or incorrect data rectified, In the case at issue (Case C-491/07), goal of Art. 54 of the CISA is to ensure erased, or blocked or even to bring about a Slovak national, Mr. Turanský, was that a person, once he has been found legal proceedings and obtain compensa- accused by the Austrian authorities of guilty and served his sentence, or, where tion for the damage suffered. As to the having carried out, along with others, a applicable, been acquitted by a final scope of this right in the past, the Court serious robbery on an Austrian national judgment in a Member State, may travel decided that it is for the Member States in Vienna, Austria. The offence was car- within the Schengen territory without to fix a time-limit for the storage of in- ried out in 2000. In 2003, the Austrian fear of being prosecuted for the same formation on the recipients or categories authorities found that Mr. Turanský had acts in another contracting State (see, to of recipients of personal data and on the been staying in his country of origin and that effect, Case C-436/04 Van Esbroeck content of the data disclosed and to pro- requested the Slovak authorities to ini- [2006] ECR I-2333, paragraph 34), it is vide for access to that information. The tiate criminal proceedings against him. not intended to protect the suspect from time-limit must constitute a fair balance On 26 July 2004, a Slovak police officer having to submit to possible subsequent between the interest of the data subject in charge of the investigation opened investigations, in respect of the same in protecting his privacy – particularly criminal proceedings into the reported acts, in several Contracting States.” by means of his rights to rectification, acts without, however, charging a spe- For the case law of the ECJ regard- erasure, and blocking of the data, in cific person. In 2006, the Slovak police ing Art. 54 CISA, see also the article of the event that the processing of the data officer ordered the suspension of the Ligeti in this issue. does not comply with the Directive, as criminal proceedings under Art. 215 of eucrim ID=0901038 well as rights to object to and initiate the Slovak Code of Criminal Procedure, legal proceedings – and the effort that arguing that the investigation had proven Proposal on Solving Conflicts the obligation to store such information that the act in question does not consti- of Jurisdiction represents for the controller of the par- tute a crime. The criminal court in Vi- In January 2009, the Czech Republic, ticular database. enna asked the ECJ whether the order of Poland, Slovenia, Slovakia, and Sweden With regard to the present case, the the Slovak police officer would trigger put forward a joint initiative that seeks ECJ found that rules limiting the stor- the ne bis in idem rule of Art. 54 CISA. to establish EU rules on the prevention age of information (on the recipients or First, the ECJ confirmed its case law and settlement of conflicts of jurisdic- categories of recipients of personal data that Art. 54 CISA applies ratione tempo- tion in criminal proceedings. The pro- and on the content of the data disclosed ris, although the crime was committed posed Framework Decision establishes: to a period of one year) and correspond- at the time Slovakia was not part of the  The procedural framework under ingly limiting access to that information, Schengen agreement. In view of the ECJ, which national authorities must exchange while basic personal data is stored for a it is sufficient that the CISA is in force information about ongoing criminal much longer period, do not constitute a between the two countries concerned at proceedings for specific facts in order fair balance of the interests and obliga- the time the conditions governing the to find out whether there are parallel on- tions at issue, unless it can be shown that applicability of the ne bis in idem princi- going proceedings for the same facts in longer storage of that information would ple were assessed (here, in October 2007 other Member State(s) and under which constitute an excessive effort on the part by the referring court). their national authorities will enter into of the controller. As to the question referred for a pre- direct consultations in order to reach an eucrim ID=0901037 liminary ruling, the ECJ emphasised that agreement on the best placed jurisdic-

eucrim 1–2 / 2009 | 11 NEWS – European Union tion to conduct criminal proceedings for took place in the territory of another be regarded as complementing the prin- specific facts that fall within the jurisdic- Member State. ciple of mutual recognition, both in the tion of two or more Member States;  Establishment of an obligation for the pre-trial and post-trial stages.  Rules and common criteria that must responding authority to respond to the eucrim ID=0901039 be taken into account by the national au- notification by submitting certain pieces thorities of two or more Member States of information. Debate in Council on Conflicts whenever they seek agreement on the  Obligation to enter into direct consulta- of Jurisdiction best placed jurisdiction to conduct crim- tion in order to agree on the best placed The above-mentioned proposal of the inal proceedings for specific facts. jurisdiction to conduct criminal pro- five Member States on the prevention It is proposed that the Framework De- ceedings for specific facts that may fall and settlement of conflicts of jurisdiction cision will apply to the following situa- within the jurisdiction of both places. in criminal proceedings was already the tions:  Establishment of rules under which subject of debate in the Council work-  Where the competent authorities of the best placed jurisdiction must be cho- ing groups and the Council of the Justice one Member State conduct criminal pro- sen. Here, there is a rebuttable presump- and Home Affairs Ministers. ceedings and discover that facts that are tion in favour of conducting proceedings At its meeting on 26-27 February the subject of these proceedings demon- in the territory of the State where most 2009, the Ministers held an orientation strate a significant link to one or more of the criminality occurred, which shall debate on the key elements of the draft. other Member States and it is possible be the place where most of the factual The debate focused, in particular, on that the competent authorities of such conduct performed by the persons in- the objectives and scope of the future other Member State(s) are conducting volved occurred. instrument, the nature of the competent criminal proceedings for the same facts;  Generally, facultative cooperation authorities which would be able to act  Where the competent authorities of with Eurojust and its mechanisms in under the Framework Decision, and the one Member State conduct criminal pro- solving conflicts of jurisdiction. communication procedures. A consen- ceedings and, by whatever means, be-  Maintenance of a flexible approach sus was reached on restricting the scope come aware that the competent authori- by which other bilateral and multilat- of the instrument to situations where the ties of one or more other Member States eral agreements continue to prevail if same person(s) is (are) subject to parallel are conducting criminal proceedings for they better achieve the objectives of the criminal proceedings in different Mem- the same facts. Framework Decision. ber States, which might lead to the dou- The Framework Decision will not ap- Background: The joint initiative lev- ble final disposal of those proceedings ply to situations where no Member State erages the discussion on the problem of (the “ne bis in idem” legal principle). has established its jurisdiction over the positive conflicts of jurisdiction, discus- eucrim ID=0901040 committed criminal offence (negative sions which date back to 2000. It also At its second formal meeting under conflicts of jurisdiction). It will not ap- resumes the initiative of the Hellenic Re- the Czech Presidency on 6 April 2009, ply to any proceedings brought against public of February 2003 (proposal for a the JHA Ministers even reached agree- undertakings if such proceedings have Framework Decision on ne bis in idem) ment on a general approach to the draft as their object the application of Euro- and the considerations of the Commis- framework decision. The focuses of the pean Community competition law. The sion in its Green Paper on Conflicts of debate this time were the role of Eurojust Framework Decision does not confer Jurisdiction and the Principle of ne bis in in dealing with cases where competent any rights on a person that can be in- idem of 2005. However, the current pro- authorities could not find consensus, the voked before the national authorities. posal does not follow proposals included interaction with rules of European Com- The main features of the proposal in the Green Paper, such as the establish- munity competition law, and the imple- are: ment of a body that would give binding mentation period for the new legislation.  Establishment of an obligation for decisions. Beyond this, the proposal The agreed text of the Framework De- a competent authority to notify the au- takes up a central demand of the 2004 cision was transferred to the European thorities of other Member State(s) if a Hague Programme for strengthening Parliament for its opinion. significant link to ongoing criminal pro- freedom, security and justice in the EU, eucrim ID=0901041 ceedings in one or more Member States by which particular attention should be During the negotiations in the Coun- is discovered. given to exploring possibilities to con- cil Working Party on Cooperation in  Definition of the “significant link” centrate the prosecution in cross-border Criminal Matters, some delegations which shall, inter alia, always be consid- multilateral cases in one Member State, pointed out that the above-mentioned ered where the conduct or its substantial including proposals on conflicts of juris- proposal on conflicts of jurisdiction may part giving rise to the criminal offence diction. The initiative at issue can also conflict with the principle of legality,

12 | eucrim 1–2 / 2009 Procedural Criminal Law which governs criminal procedure in of conflicts of jurisdiction in criminal The Commission takes the view that this many EU Member States. According to proceedings was critically reviewed by legal situation impairs the harmonisa- this view, an agreement on the concen- the Law Society of England and Wales. tion of the treatment of victims in the tration of criminal proceedings in one The Law Society is the professional as- EU, which is the main objective of the EU Member State can only work if the sociation that represents over 120,000 Framework Decision. involved Member States’ authorities are solicitors in England and Wales.  Some Member States have not com- entitled to suspend or terminate their The Law Society published a state- pleted the transposition of the Frame- proceedings. The German delegation put ment in February 2009 that proposes work Decision. forward a proposal for a new provision several amendments to the draft Council  A number of Member States stated of the FD which would ensure that the Framework Decision on conflicts of ju- that they have fulfilled their obligations Member States are entitled to suspend risdiction in criminal proceedings. through non-binding acts, such as guide- their proceedings when a consensus on The amendments made by the Law So- lines on best practices, charters, and concentration of the proceedings in the ciety mainly aim at further strengthen- instructions to public prosecutors. The other Member State has been reached. ing the procedural rights of the suspect Commission questions this approach eucrim ID=0901042 or defendant that, according to the Law since non-binding measures are not al- Society, are not considered sufficient in ways complied with in full. Conflicts of Jurisdiction: Critical First the drafts. The Law Society thinks that  Victim support organisations are sat- Viewpoint by Parliament the proposal notably: isfied with the content of the Framework The European Parliament’s Committee  Does not provide for the suspect or Decision and consider it to be a good on Civil Liberties (LIBE) held a first defendant to be involved in, or even in- start, but they believe that the work must exchange of views on the new proposal formed of, the process of the choice of be continued, particularly by granting for solving conflicts of jurisdiction at the criminal jurisdiction; them the funds needed to carry out their end of January 2009 already. The Com-  Does not provide for the suspect or tasks. mittee assessed the proposal critically. defendant to challenge this process or The 2001 Framework Decision on the In particular, the Members of Parlia- the outcome of this process; standing of victims in criminal proceed- ment’s Committee stressed that consul-  Does not provide for judicial over- ings implements one of the central de- tations should not be carried out in an sight of this process. mands of the Tampere European Council informal manner. They argued in favour eucrim ID=0901044 of 1999. Victims should enjoy a compa- of more elements of transparency in the rable high level of protection throughout proposal, which were deemed necessary the European Union, irrespective of the to guarantee the procedural rights of the Member State in which they are present. defendant. As a result, various actors in Victim Protection To this end, the Member States must criminal proceedings, such as defence align their legislation on criminal pro- lawyers, prosecutors, and judges, should More Needs to Be Done on ceedings so as to guarantee to victims: be involved in the course of the consul- Implementation of the FD on the  The right to be heard in the proceed- tations. The competent EP rapporteur, Standing of Victims in Criminal ings and the right to furnish evidence; Proceedings MEP Renate Weber, tabled a draft re-  Access to information of relevance port on the legislative proposal for the For the second time, the Commission as- for the protection of their interests from Framework Decision on prevention and sessed the implementation of the Frame- the outset; settlement of conflicts of jurisdiction in work Decision 2001/220/JHA of 15  Access to appropriate interpreting criminal proceedings on 26 February March 2001 on the standing of victims and communication facilities; 2009. However, the report was not dis- in criminal proceedings. Overall, the  The opportunity to participate in the cussed in plenary before the elections of Commission stated that the implementa- proceedings as a victim and to have ac- the EP. tion has not been satisfactory. The main cess to legal advice and, where warrant- eucrim ID=0901043 shortcomings listed in the report pre- ed, legal aid free of charge; sented in April 2009 (COM(2009) 166)  The right to have legal costs refunded; Law Society: Individual’s Rights Not are as follows:  A suitable level of protection for Considered Sufficiently in Planned FD  Generally, Member States informed crime victims and their families, par- on Conflicts of Jurisdiction the Commission that national measures ticularly as regards their safety and the The above-mentioned proposal of the complying with the European require- protection of their privacy; Czech Republic and other Member ments were already in place before the  The right to compensation; States on the prevention and settlement adoption of the Framework Decision.  The possibility for victims residing

eucrim 1–2 / 2009 | 13 NEWS – European Union in another Member State to participate of the use of his right to property aris- vided sufficient evidence that OMPI’s properly in the criminal proceedings ing from that regulation – Mr. Othman terrorist label was justified (see eucrim (teleconferencing or video conferenc- finds himself in a factual and legal situ- 1-2/2008, pp. 34-35). ing, etc.). ation in every way comparable to that of eucrim ID=0901047 Furthermore, respect for the individu- Mr. Kadi. Taking up the arguments of OMPI itself initially appealed against al’s dignity is to be safeguarded through- the ECJ in the Kadi case, the CFI held an earlier decision of the CFI dated out the proceedings and Member States that the applicant’s right to be informed 23 October 2008 (Case T-256/07), but are to make special arrangements to ca- of the evidence adduced against him and now withdrew its application. In this ter for certain vulnerable categories of his right to effective judicial review had case, the CFI examined two decisions victim. Member States are also to ensure not been observed by the Council during of the Council maintaining OMPI on the that staff dealing with victims receive the blacklisting proceedings. Further- EU’s terrorist list. The CFI annulled the appropriate training. more, the CFI remarks that the restric- second decision (2007/868/EC), argu- The first Commission’s imple- tive measure imposed against Mr. Oth- ing that the Council had not sufficiently mentation report dates back to 2004 man constituted an unjustified restriction taken into account new exculpatory (COM(2004) 54). Already in this first of his right to property. material, but upheld the first decision report, the Commission concluded that However, the judgment of the CFI (2007/445/EC) approving the Council’s Member States should make more ef- (T-318/01) might only be a partial vic- modus operandi of listing. OMPI argued forts to give effect to the provisions of tory for Mr. Othman since, according to in its application for appeal that the CFI the Framework Decision. the Statute of the Court of Justice, the was legally wrong in concluding that the eucrim ID=0901045 CFI’s decision declaring a regulation to Council had not committed a manifest be void takes effect only from the date of error of assessment in reaching its first expiry of the period in which an appeal decision. may be brought before the Court of Jus- eucrim ID=0901048 Freezing of Assets tice – that is to say, two months and ten days from notification of the judgment Council’s Blacklisting Again Censored or, if an appeal has been brought within Once again, an individual was success- that period, as from the date of dismissal Cooperation ful before the European Courts in that a of the appeal. Thus, ample time remains Council Regulation freezing his funds for the Council to remedy the infringe- was annulled. As in the Kadi case, the ments found by adopting, if appropri- Customs Cooperation case at issue refers to the blacklisting of ate, a new restrictive measure directed persons associated with Usama Bin Lad- against Mr. Othman. Council Decision Planned to Replace en, Al-Qaeda or the Taliban by the UN eucrim ID=0901046 CIS Convention Security Council (for the different UN In November 2008, France tabled an Resolutions and blacklisting schemes, Appeal in the OMPI Case initiative to reinforce, modernise, and cf. Meyer, eucrim 3-4/2006, p. 66). The France appealed to the European Court expand the EU’s joint automated infor- person concerned is a Jordan national of Justice against the judgment of the mation system for customs purposes, (Mr. Othman) who has been present Court of First Instance (CFI) of 4 De- known as the Customs Information Sys- in the United Kingdom. Mr. Othman cember 2008 (Case T-284/08), which tem (in short: CIS). challenged the freezing of his funds by forced the Council to remove the Iranian CIS enables national customs servic- Council Regulation (EC) No. 881/2002 opposition movement OMPI (abbrevi- es to exchange and disseminate informa- of 27 May 2002 before the Court of First ated “PMOI” in English) from the EU’s tion on smuggling activities and requests Instance (CFI). terrorist blacklist. The Council carried for action. It assists in preventing, inves- In its judgment of 11 June 2009, the out the delisting in January 2009. The tigating, and prosecuting serious contra- CFI referred to the landmark judgment French government still takes the view ventions of national laws by increasing of the European Court of Justice (ECJ) that OMPI is a terrorist organisation the effectiveness of cooperation and of 3 September 2008 (Case Kadi, cf. eu- meriting inclusion on the list and that control procedures of the customs ad- crim 1-2/2008, p. 33) and notes that – the procedure was in accordance with ministrations of the Member States. The both in respect of the procedure leading the law. The CFI mainly argued that the information system offers all Member to the adoption of the contested regula- procedure used to adopt the list had dis- States immediate access to relevant cus- tion and in respect of the extent, effects, regarded the organisation’s rights to de- toms information, without communica- and justification, if any, of the restriction fence and that the Council had not pro- tion barriers.

14 | eucrim 1–2 / 2009 Cooperation

It is worth mentioning that – due to authorities should be reinforced. In the  The legislator should deliver more the division of the European Union’s le- future, the CIS mechanism will expand information and arguments on the need gal bases according to the pillars (Com- the use of CIS data, including searches in to broaden the use of CIS in view of the munity law v. cooperation in criminal the systems and the possibility for stra- new possibilities for searches in systems matters) – CIS consists of two databas- tegic or operational analyses. A strategic and strategic or operational analyses, es: one within the framework of Euro- analysis should help those responsible especially taking into account possible pean Community actions allowing the at the highest level to determine proj- effects on the protection of the rights of prevention, detection, and prosecution ects, objectives, and policies for com- individuals with regard to their personal of contraventions of Community cus- bating fraud, to plan activities, and to data. toms and agriculture legislation (first deploy the resources needed to achieve  The JSA criticises that the proposal pillar database – Council Regulation the operational objectives laid down. An does not contain a sufficient assessment (EC) No. 515/97 of 13 March 1997, OJ operational analysis of the activities, regarding the impact on the protection 1997 L 82, 1) and the other in the con- resources, and intentions of certain per- of personal data and the added value if text of intergovernmental action geared sons or businesses that do not comply or Europol and Eurojust are granted access towards the prevention and detection of do not appear to comply with national to the database. illegally smuggled goods (third-pillar laws should help customs authorities  The communication of CIS data to database – Convention on the use of the take the appropriate measures in specific third countries or third bodies by Eu- information technology for customs pur- cases in order to achieve the objectives ropol must be aligned with the stand- poses, OJ 1995 C 316, 33.) The legal ba- established in the fight against fraud. ards of the said Framework Decision sis for the intergovernmental database is Secondly, the draft Decision intends 2008/977/JHA and cannot only be based the CIS Convention, which is indicated to grant Europol and Eurojust access to on the consent of the Member State that in the following ID. CIS, thus achieving complementarity entered the data into the system. eucrim ID=0901049 with actions of these agencies.  In addition, the new legislation must The CIS Convention sets out the pro- In addition, the draft Decision in- specify the conditions for entering data cedures to be adopted in the use of infor- creases the categories of the data to be by Europol. mation technology for customs purposes. processed and introduces the possibility  The new Council Decision should It outlines the broad parameters of infor- to copy data from CIS, direct national also specify the conditions regarding mation that may be stored, the manner in customs controls, and coordinate ac- permission to copy CIS data into nation- which information can be amended, se- tions. al data files. curity systems, and data-protection pro- eucrim ID=0901051  The Customs JSA suggests bringing visions. The draft from France addresses into line the (exercise of the) rights of the this third-pillar legislation and aims at re- Opinion of Customs Joint Supervisory data subjects with Framework Decision placing the CIS Convention by a Council Body 2008/977/JHA. This especially concerns Decision in line with Art. 30(1) lit. a) and The Customs Joint Supervisory Au- the terms of the general grounds for re- Art. 34(2) lit. c) TEU. The draft Decision thority (JSA), which is responsible for stricting these rights. takes into account similar provisions on supervising the Customs Information  The JSA would like to see more ap- CIS and the customs files identification System (CIS) with regard to data pro- propriate control mechanisms to be es- database (“FIDE”) in Regulation (EC) tection, submitted an opinion in which tablished. No. 766/2008 of the European Parliament it analysed the effects of the above-men- eucrim ID=0901052 and the Council of 9 July 2008, amending tioned French proposal on the protection Council Regulation (EC) No. 515/97 on of personal data. mutual assistance between the adminis- In a general remark, the JSA points trative authorities of the Member States out that the yardsticks as set out in the Judicial Cooperation and cooperation between the latter and Framework Decision 2008/977/JHA on the Commission in order to ensure the the protection of personal data processed New Proposal on Transfer of correct application of the law on customs in the framework of police and judicial Proceedings in Criminal Matters and agricultural matters. The Regulation cooperation in criminal matters must ap- At the beginning of its Presidency on (see following ID) further develops the ply and no longer the standards of the 1 July 2009, Sweden, together with sev- first-pillar CIS database. Council of Europe Convention on data eral other EU Member States, tabled eucrim ID=0901050 protection (ETS No. 108). another proposal to strengthen judicial The French initiative has two purpos- Specific remarks of the JSA on each cooperation and contribute to the cre- es: First, cooperation between customs article include, inter alia: ation of a real “European judicial area”.

eucrim 1–2 / 2009 | 15 NEWS – European Union

The draft concerns a possible Council Conferences and Seminars Organised by the Academy Framework Decision (FD) on the trans- of European Law (ERA) from September 2009 to October 2009 fer of proceedings in criminal matters. The objective of the initiative reads as The editors of eucrim would like to draw the attention to the following conferences follows in Art. 1 of the draft FD: and seminars of ERA which will take place in the second half of 2009: “The purpose of this Framework Deci- Using EU Criminal Justice Instruments – Mutual Legal Assistance sion is to increase efficiency in criminal and Mutual Recognition of Judicial Decisions in the EU proceedings and to improve the proper administration of justice within the area ERA is organising a series of ten decentralised seminars that aim to raise awareness of and offer practical training in the use of EU instruments on mutual legal assistance of freedom, security and justice by es- and mutual recognition of judicial decisions in criminal matters. One specific aim of the tablishing common rules facilitating the project is to train groups from selected EU Member States which are geographically transfer of criminal proceedings between close to each other and therefore connected in terms of cross-border cooperation. An competent authorities of the Member introductory seminar will take place in Vienna, Austria from 21 to 22 September 2009. The seminar is addressed at judges and prosecutors from Austria, Bulgaria, Hungary, States, taking into account the legitimate Italy, and Slovenia without practical experience in cross-border judicial cooperation interests of suspects and victims.” and in applying EU mutual recognition instruments. In all seminars, the exchange of The FD would replace, among the EU best practices and networking will play a central role. Discussion and practical exer- Member States, the European Conven- cises in each group will be coordinated by national and European experts. An introductory e-learning course is offered. tion on the Transfer of Proceedings in Criminal Matters that had been adopted The European Evidence Warrant – The Acquisition and Admissibility within the framework of the Council of of Foreign Evidence Europe and dates back to 1972. The Eu- Dublin, 9–10 October 2009 ropean Convention was only ratified by The conference will address problems and questions arising in the context of the im- 13 of the current EU Member States and plementation of the Framework Decision on the European Evidence Warrant which its success has been rather mild so far. was adopted in December 2008 (see eucrim 1-2/2008, pp. 40-42) and is a further major EU instrument of mutual recognition. The problems and questions arising will be pre- The presented FD would further sup- sented and discussed in the form of presentations, panel discussions and case sce- plement the EU instruments that had narios by leading EU and national experts at this conference: The conference will also been adopted under the label of mutual consider the second stage proposal planned to cover evidence currently excluded recognition, such as the FDs on the en- from the EEW. forcement of sentences in other Member Towards a more effective control of financial crimes and better protection States, on financial penalties, or on proof the financial interests of the EU bation decisions. It was also designed to Stockholm, 13–14 October 2009 prevent infringements of the ne bis in In cooperation with the Swedish EU Presidency, the conference is to debate and ex- idem principle. change ideas on combating financial crimes in the EU, including the protection of the The draft lists the criteria for requesting financial interests of the EU, from a strictly practical perspective. The conference will the transfer of proceedings in criminal focus on the operative challenges in investigations for police and judicial authorities. It will also seek to provide up-to-date information on new institutional tools and to matters. These criteria include, for in- inform on the work of other national law enforcement organisations in the EU. The stance, that: partnership between the private and the public sector will also be discussed. Work-  The offence has been committed shop sessions will be organised and practical experiences with existing tools will be wholly or partly in the territory of the compared in plenary discussions. other Member State, or most of the ef- Mutual Recognition of Judicial Decisions in Criminal Matters – fects or a substantial part of the damage The Role of the National Judge caused by the offence was sustained in 4th Annual Forum, Trier, 28–30 October 2009 the territory of the other Member State; This three-day forum is the fourth annual event aimed at national judges and prosecu-  Substantial parts of the most impor- tors on the subject of mutual recognition. This Europe-wide platform should enable tant evidence are located in the other judges and prosecutors to exchange experiences, discuss common problems and Member State; promote cooperation and best practice in the field of judicial cooperation in criminal matters.  Enforcement of the sentence in the other Member State is likely to improve Please find more about the mentioned events on criminal law and further conferenc- the prospects for social rehabilitation of es/seminars at ERA at the following website: eucrim ID=0901053 the person sentenced;  The victim is ordinarily resident in the other Member State or the victim has

16 | eucrim 1–2 / 2009 Cooperation another significant interest in having the the law of the executing State make it tation of the Council’s guidelines and proceedings transferred. impossible to execute the confiscation determine the content of common Euro- According to the draft, it would be order; or if the confiscation was ordered pean training programmes. sufficient for a transfer if at least one of for a procedure in absentia. As in other Beyond the implementation of the the listed criteria is met. Both the sus- instruments of mutual recognition, dou- guidelines, the Czech Presidency pro- pected person and the victim must be in- ble criminality may not be an obstacle vided information on the creation of a formed about the intended transfer. for a list of specific, more or less serious, Euro-Arab network for judicial training. Furthermore, the FD provides lim- criminal offences. eucrim ID=0901057 ited grounds for refusing transfer by the Furthermore, it is foreseen that the ex- receiving authority of a Member State. ecuting State keep the confiscated amount One condition is that the act underly- if it is under € 10,000. In case of amounts ing the request for transfer constitutes exceeding € 10,000, the executing and is- European Arrest Warrant an offence under the law of the Member suing States split the amount equally. State of the receiving authority (double On the occasion of the implementa- Advocate General Details criminality). The draft further provides tion of the Framework Decision, Ger- Interpretation of Art. 4 No. 6 FD rules on the effects of the transfer and many will alter its national mutual legal in Wolzenburg Case seeks to establish a consultation mecha- assistance law by simplifying the rules On 24 March 2009, Advocate Gen- nism among the competent authorities under which the injured party may re- eral Bot tabled his conclusions in the of the Member States involved before a ceive public compensation from Germa- Wolzenburg case (C-123/08), which will transfer of proceedings is requested. The ny’s rate for the confiscated amount. again offer the European Court of Jus- Council estimates that the FD may re- The Framework Decision on confis- tice (ECJ) the occasion to interpret Art. 4 duce the costs of criminal prosecutions cation orders was actually to be imple- No. 6 of the Framework Decision on the in the long term. mented by 24 November 2008. European Arrest Warrant. It allows the eucrim ID=0901054 eucrim ID=0901055 executing Member State to refuse the execution of an EAW issued for the pur- Mutual Recognition of Confiscation EU-Japan: Mutual Assistance pose of execution of a custodial sentence Orders: Germany’s Implementation in Criminal Matters or detention order, “where the requested Before the summer break, the German The EU and Japan have entered into ne- person is staying in, or is a national or a parliament finalised the legislative im- gotiations for an agreement on mutual resident of the executing Member State plementation of the Framework Decision legal assistance in criminal matters. At and that State undertakes to execute the 2006/783/JHA of 6 October 2006 on the the 18th EU-Japan Summit on 4 May sentence or detention order in accord- application of the principle of mutual 2009 in Prague, Czech Republic, sum- ance with its domestic law.” recognition to confiscation orders. The mit leaders expressed their hope that ne- The Rechtbank Amsterdam would new law will facilitate and streamline ju- gotiations will be constructive and con- like to know to which extent this ground dicial cooperation among the EU Mem- cluded early. Currently, none of the EU for refusal applies to a German citizen ber States in order to confiscate crime- Member States has a bilateral agreement against whom Germany issued a Euro- related proceeds throughout the EU. of this kind with Japan. pean Arrest Warrant for the purpose of The Framework Decision, in princi- eucrim ID=0901056 executing a criminal sentence in Ger- ple, obliges each EU Member States to many, but who has been working in the recognise, without much formality, and Training of Judicial Staff: Netherlands, where he also lives with to execute in its territory a confisca- Implementation Report his wife, since 2005. The Dutch court tion order issued by a court competent At its meeting on 4-5 June 2009, the JHA faces the problem that the person want- in criminal matters of another Member Council endorsed a report that took stock ed is not in possession of a permanent State. In parallel to other instruments on of the follow-up to the resolution on the residence permit for the Netherlands and mutual recognition of judicial decisions, training of judges, prosecutors, and judi- that the application of the ground for the executing Member State is not enti- cial staff in the EU, adopted in October refusal seems to be excluded because tled to invoke except for a few grounds 2008 (see eucrim 1-2/2008, p. 36). The Dutch legal practice does apply the re- of non-recognition or non-execution follow-up mainly reviews the activities fusal of the surrender for purposes of ex- of the request: e.g., if the execution of of European Judicial Training Network ecuting a sentence to citizens from other the confiscation order would be con- (EJTN). EU Member States only if they are in trary to the principle of ne bis in idem; The EJTN and its members play a the possession of a permanent residence if the rights of an interested party under pivotal role in the practical implemen- permit.

eucrim 1–2 / 2009 | 17 NEWS – European Union

The Rechtbank Amsterdam referred in the affirmative. He argues that Art. 12 the alleged membership in the criminal mainly the following questions to the TEC is also applicable to the Framework group. The Higher Regional Court of Court: (1) How long must a person against Decision on the European Arrest War- Stuttgart notes that the case does not whom a EAW has been issued have been rant – i.e., a criminal law measure taken concern the transnational ne bis in idem staying in the executing Member State in in the third pillar. He ultimately rejects rule as it is stipulated, for instance, in order to assume a stay or lawful residence arguments of Member States that ex- Art. 54 CISA (see above). Notwithstand- in the meaning of Art. 4 No. 6?; (2) May traditions of own nationals and those of ing, the Court is considering the applica- the executing Member State lay down, in residents are not comparable situations. tion of Art. 3 No. 2 of the FD EAW and addition to a requirement concerning the He mainly argues that the special status first asks whether the ne bis in idem pro- duration of lawful residence, supplemen- of own nationals in extradition law has vision in the FD EAW must be based on tary administrative requirements, such been given up by the European Arrest an autonomous interpretation (EU law) as possession of a permanent residence Warrant scheme, which is based on the or whether the law of the executing or permit?; and (3) Does Dutch extradition mutual recognition principle. Accord- issuing Member State is decisive for its law result in discrimination prohibited ing to Mr. Bot, a systematic exemption interpretation. by Art. 12 TEC because the surrender of surrender in favour of own nationals Second, the Court is asking for the of Netherlands nationals is inadmissible would deprive the Framework Deci- definition of “the same act” in order per se if the surrender is requested for sion of its practical effectiveness (“effet to be able to decide in the present case the execution of an irreversible custodial utile”). whether the act underlying the EAW had sentence, whereas the surrender of other eucrim ID=0901058 already been sentenced by the first Ital- EU residents in the Netherlands is only ian judgment against the defendant. The refused if they are in the possession of a German Court Asks ECJ for an peculiarity of the case is that Italian law permanent residence permit? Interpretation of ne bis in idem Rule enforcement authorities already knew The Advocate General points out that in the FD EAW about the defendant’s membership in the the first and second questions, in es- The Oberlandesgericht Stuttgart (Higher organisation but withheld this informa- sence, have already been answered by Regional Court of Stuttgart, Germany) tion in the first proceedings in which the the ECJ’s judgment of 12 July 2008 in referred two questions for a preliminary defendant had been sentenced for a spe- the Kozlowski case (see eucrim 1-2/2008, ruling to the European Court of Justice cific drugs offence. pp. 36-37). However, the Advocate Gen- (ECJ) concerning the interpretation of eucrim ID=0901059 eral also attempts to refine the statements Art. 3 No. 2 of the Framework Decision made by the ECJ in the case Kozlowski. on the European Arrest Warrant (FD Council: Snag List on EAW He proposes that the chances of the per- EAW). At its meeting on 4-5 June 2009, the son’s rehabilitation in the executing state Pursuant to Art. 3 No. 2 of the FD, the Council for Justice and Home Affairs is the crucial criterion for the assessment executing judicial authority shall refuse grappled with the report on the applica- of whether a person affected by an EAW the execution of a European arrest war- tion of the European Arrest Warrant after is “staying” or “resident” in the mean- rant “if the executing judicial authority the fourth round of mutual evaluations. ing of Art. 4 No. 6, while the duration of is informed that the requested person has Like the national authorities, the Minis- (lawful) residence is only an important been finally judged by a Member State ters stressed that “the EAW is working indication. As to the second question, in respect of the same acts provided that, well and that can be considered a sym- he advocates that the executing Member where there has been sentence, the sen- bol for the practical legal cooperation State is not allowed to add supplementa- tence has been served or is currently be- among EU member states. In the fight ry administrative requirements, such as ing served or may no longer be executed against crime, it has proved to be a use- the possession of a permanent residence under the law of the sentencing Member ful tool and a model worldwide.” permit, for the application of Art. 4 No. 6 State”. Nevertheless, the report (Council of the FD. In the case at issue (Case C-261/09, doc. 8302/09) reveals that flaws remain Detailed explanations are given by Mantello), Italy is requesting from Ger- in the practical application of the in- the Advocate General regarding the many the surrender of an Italian nation- strument. In some Member States, for third question as to whether the Dutch al for membership in a criminal group example, administrative authorities still implementation of Art. 4 No. 6 contra- whose purpose was illegal drug trade. play a large role in the extradition and dicts the principle of non-discrimination However, the defendant had already surrender procedure. The report recom- as enshrined in Art. 12 TEC – an issue been sentenced by an Italian court for a mends to these Member States that they which the ECJ did not decide on in the specific drug offence (drug smuggling), strengthen the control function of the Kozlowski case. He answers the question which falls within the same period as courts. Furthermore, not all Member

18 | eucrim 1–2 / 2009 Cooperation

States examine a request for surrender the possibility for the suspect to request a supervision measure, the suspect needs in view of its proportionality; some au- the issuing competent authority to for- to be arrested and surrendered to the is- thorities even completely renounce the ward the supervision order to a Member suing Member State. Second, the EP ar- principle of proportionality. Another de- State other than the one in which he/she gues that the EAW should apply, in such ficiency is the training of defence law- is ordinarily and lawfully a resident. cases, to all offences without setting a yers on matters of the EAW. The report However, the EP would like the Coun- threshold. points out, however, that this is not a cil to consider further amendments to the eucrim ID=0901061 matter of responsibility of national pub- present text. Overall, the EP aims at fur- lic authorities. ther strengthening the procedural safe- eucrim ID=0901060 guards of suspects. One proposal in this regard is, for example, that decisions on Criminal Records supervision measures involving personal freedoms can only be issued, executed, FD on Criminal Records in Force: European Supervision Order and monitored by judicial authorities. Speedier Circulation of Information Another proposal is the establishment on Convictions in the Future EP Opinion on Council Draft of minimum procedural safeguards con- After more than three years of nego- After the revision of the initial Commis- cerning the execution of supervision tiations, the Council finally adopted the sion proposal by the Council, the Euro- measures and, notably, the right for the Framework Decision (FD) 2009/315/ pean Parliament (EP), on 2 April 2009, suspect to be accurately informed in a JHA on the organisation and content of tabled its opinion on the draft Council language he/she understands. the exchange of information extracted Framework Decision on the applica- As regards the types of supervision from the criminal record between Mem- tion, among Member States of the Eu- measures, the Parliament calls on the ber States. The FD entered into force on ropean Union, of the principle of mutual Member States to recognize the deposit 27 April 2009. recognition to decisions on supervision of money as a supervision measure. According to the FD, convictions measures as an alternative to provisional The EP further strongly suggests de- contained in criminal records will be ex- detention (see for the revision and the leting Arts. 14 and 15 (1) lit. d) that take changed EU-wide according to a com- Commission’s original proposal, eucrim over the scheme of other framework mon procedure. The FD first obliges 1-2/2008, p. 44; 3-4/2007, p. 110, and decisions applying the mutual recogni- each EU Member State to ensure that all 3-4/2006, pp. 74-75). It is the second tion principle as regards the verification convictions handed down within its ter- consultation of the European Parlia- of double criminality. In the view of the ritory are accompanied, when provided ment; the EP already gave an opinion EP, it makes no sense to make the recog- to a criminal record, by information on on the initiative of the Commission in nition and execution of the decision on the nationality or nationalities of the November 2007 (see eucrim 3-4/2007, supervision measures subject to the veri- convicted person if he/she is a national p. 110). The instrument is also treated fication of dual criminality. Arts. 14, 15 of another Member State. Second, the under the short name “European Super- would exclude the verification of dual convicting Member State must inform vision Order”. criminality only for the categories of of- the Member State of the convicted per- MEPs overwhelmingly voted for a fences listed, thus still allowing grounds son’s nationality ex officio and as soon report from MEP Ioannis Varvitsiotis. for refusal based on the lack of dual as possible of such a conviction. This MEPs reiterated that they strongly sup- criminality for all offences not included obligation of the convicting Member port the adoption of this piece of legisla- in the list. The EP argues that this is con- State covers, on the one hand, the con- tion, which will be applied in favour of tradictory to the instrument’s objective victions handed down and entered into criminal suspects in order to avoid de- of avoiding a prison pre-trial measure to the criminal records and, on the other tention in the pre-trial stage because the the widest possible extent and that the hand, subsequent alterations or deletions new EU instrument will allow the mu- maintenance of the present rule would of information contained in the criminal tual recognition of pre-trial supervision affect the equal treatment of persons. record. The Member State of the per- orders. In the pre-trial stage, the instru- Ultimately, the EP is still not in line son’s nationality must store the informa- ment offers the possibility to let non-res- with the Council as regards the relation- tion received. The Member States must idents of the prosecuting State return to ship between the European Supervision designate central authorities for the pur- the Member State of their current lawful Order and the European Arrest Warrant. pose of the FD. and ordinary residence. In this context, it First, the EP believes that the competent Requests for information on convic- was welcomed that the Council widened issuing authority should decide on a case- tions will be carried out quickly and in a the scope of the instrument to include by-case basis if, in the case of breach of uniform format according to the mecha-

eucrim 1–2 / 2009 | 19 NEWS – European Union nism established by the FD. Replies The European Criminal Records dures governing the exchange of infor- to requests shall take no longer than Information System (ECRIS) mation and the common understanding 10 working days. A request can already The aforementioned Framework Deci- of the categories of offences, penalties, be made at the pre-trial stage. sion on the exchange of information ex- and measures listed in the annexes of The FD also sets out the conditions tracted from criminal records is closely the Decision. To this end, an interesting for the use of personal data. In principle, connected with a facilitated computer- feature in terms of comparative crimi- these data can be used by the requesting ised system for the exchange of infor- nal law has been foreseen, since each Member State only for the purposes of mation at the European Union level. To Member State is encouraged to submit the criminal proceedings for which they this end, the Council launched a Deci- lists and descriptions of national of- had been requested. The use of informa- sion enabling the buildup and further fences, penalties, and measures in each tion other than that of criminal proceed- development of a computerised system category referred to in the respective ings can be limited in accordance with to exchange information on convictions table. However, the Decision clarifies the national law of the requested Mem- between the EU Member States – the that this exercise does not lead to le- ber State and the requesting Member European Criminal Records Information gal equivalences between the offences, State. However, an exception is made System (in short: ECRIS – cf. eucrim penalties, and measures existing at the for cases involving the prevention of an 1-2/2008, pp. 44-45). The Decision national level. immediate and serious threat to public (2009/316/JHA) was adopted on 6 April In addition, the Decision as well as safety. Transmission of personal data to 2008 and published together with the the said Framework Decision, make countries outside the EU must be made Framework Decision in the Official clear that the established EU system for subject to the usage limitations applica- Journal L 93 of 7 April 2009. a facilitated exchange of information ex- ble in a requesting Member State, i.e., in The Decision also establishes the ele- tracted from criminal records does not case of transmission for the purposes of ments of a standardised format that will harmonise national systems of criminal criminal proceedings, for instance, the allow information to be exchanged in a records, i.e., there is no obligation for third country may not use the informa- uniform, electronic, and easily compu- Member States to change their internal tion other than for purposes of criminal ter-translatable way. The standardised systems of criminal records as regards proceedings. format particularly comprises informa- the use of information for domestic pur- A declared aim of the FD is also the tion on the offence that gives rise to the poses. capture of convictions and disqualifica- conviction as well as information on the It is worth mentioning that the ECRIS tions of persons convicted of a sexual content of the conviction. is building upon the experience of a pilot offence against children, thus integrating The ECRIS is a decentralised infor- project that aims at electronically inter- the main objective of a Belgian initiative mation technology system, i.e., criminal connecting national registers of crimi- of 2004. The FD ultimately supplements records data are solely stored in data- nal records and is part of the e-Justice Framework Decision 2008/675/JHA bases operated by individual Member project (cf. eucrim 1-2/2007, p. 40). A on taking account of convictions in the States, and it is not possible to have di- good short description of this project is Member States of the EU in the course rect online access to the criminal records delivered by the German Federal Office of new criminal proceedings (for this databases of other Member States. of Justice (in German). The Internet site FD, cf. eucrim 1-2/2008, p. 44). Member ECRIS is composed of two elements: is indicated in the following ID along- States have till 27 April 2012 for imple- (1) an interconnection software enabling side the Council Decision on ECRIS as mentation of the FD. The Commission is the exchange of information among the published in the Official Journal. called upon to provide an implementa- Member States’ criminal record data- eucrim ID=0901063 tion report by 27 April 2015. For the re- bases and (2) a common communication lationship of the FD to other instruments infrastructure that provides an encrypted on mutual legal assistance in criminal network. matters, see Art. 12 of the FD. The automatic translation and mutual E-Justice For the preliminary stages of the understanding of information is ensured present FD on the organisation and con- by reference tables for categories of of- Headway Made Concerning e-Justice tent of the exchange of information ex- fences and categories of penalties and The European Union has undertaken fur- tracted from criminal records among the measures. ther steps in the implementation of the Member States, please refer to eucrim The Member States and the Commis- e-Justice project. The e-Justice project 3-4/2006, pp. 76-78 and 1-2/2007, pp. sion are currently working on drawing involves developing an electronic sys- 40-41. up a non-binding manual for practition- tem at the EU level by taking advantage eucrim ID=0901062 ers that will address, inter alia, the proce- of modern information and communica-

20 | eucrim 1–2 / 2009 Cooperation tions technology in criminal matters as below on a European e-justice strategy sense, one of the essential conditions for well as civil, commercial, and admin- of the Commission. effective use of e-Justice across Europe istrative matters. The aim is to promote The action plan also describes the con- is the development of uniform standards access to justice and improve cross- text for the development of e-Justice at or interfaces for the use of authentication border judicial procedures. “e-Justice” the European level. The main functions technologies as well as the components is one of the elements in the creation of of European e-Justice are defined as fol- of electronic signatures. As regards the a European judicial area. The e-Justice lows: language issue, the paper proposes the project has also been one of the priori-  Providing access to information in the use of automated translation systems to ties of recent Council Presidencies. As field of justice, especially information on overcome the language barrier; this will regards the criminal law field, the inter- European legislation and case law; be flanked with a working method (still connection of criminal records has been  Dematerialisation of cross-border to be devised) that will ensure faithful high on the agenda of e-Justice work. judicial and extrajudicial proceedings, translation. As to financing the Europe- The Czech Council Presidency in the involving e-mediation or electronic an e-Justice projects, the Council allows first half of 2009 has mainly promoted communication between a court and the for recourse to already existing civil and the use of videoconferencing in cross- legal parties; criminal justice financial programmes, border proceedings.  Simplifying and encouraging com- next to drawing up a single horizon- At the end of their respective terms, munication between the judicial authori- tal programme covering both civil and the Slovenian and French Presidencies ties. criminal law matters as proposed by the each reported to the Justice and Home At the top of the agenda is the realisa- Commission; in general, the amount of Affairs Ministers of the governments of tion of the so-called European e-Justice money spent for e-Justice projects will the EU Member States on the work com- portal which should be established by the be increased in the coming years. pleted. The reports also outline priorities end of 2009 according to the aforemen- Because of its impact on the develop- for future work. tioned demand by the European Coun- ment of European e-Justice in the years eucrim ID=0901064 cil. However, the final shape and content to come, the Action Plan was published The following news describe the ma- of the portal does not yet seem to be in the Official Journal C 75 of 31 March jor recent developments in the field of clear, since it is defined rather vaguely in 2009. e-Justice. For past developments, see the Council document. The portal shall eucrim ID=0901066 also eucrim 3-4/2007, p. 111 and eucrim provide access to the entire European e- 1-2/2007, p. 40. Justice system, i.e., to European and na- Council: Czech Presidency – Focus tional information websites and services. on Video Conferencing European Council: Impetus on e-Justice It should also be able to provide access As mentioned above the Czech Council At its meeting on 19-20 June 2008, the to different functionalities on the basis Presidency has undertaken further efforts European Council – the meeting of the of different access rights of legal profes- in the promotion and development of the heads of state or government and the sions as well as a uniform authentication e-Justice projects. An important confer- president of the Commission – wel- procedure. The idea is that the portal ence in this regard took place on 17-18 comed the initiative to progressively es- will ultimately provide information for February 2009 in Prague. More than 300 tablish a uniform EU e-justice portal by citizens and companies, including in- experts shared their experiences by pre- the end of 2009 (for details on the portal, formation on the rights of defendants in senting national solutions in the area of see the following news). criminal proceedings in the various EU digitising the judicial system. The con- eucrim ID=0901065 Member States and on the competent ference, held under the motto “e-Justice authorities and possibilities to contact without Barriers”, dedicated the first day Council: Adoption of e-Justice them. It is also envisaged that, in the fu- to the development of the European e- Action Plan ture, entire proceedings will be carried Justice portal. In this context, experts On 28 November 2008, the JHA Coun- out electronically by means of the portal. presented pilot projects already running cil adopted a multi-annual European A pilot project concerning the portal was among the Member States that are ex- e-justice action plan that determines carried out by a group of Member States. pected to continue under the auspices of the projects and main tasks to be car- The Commission is now entrusted with the European portal. ried out, allocates the tasks among the the task of setting up the portal. Besides data protection issues for the Council, the Member States, and the The action plan also discusses the portal, the second day focused on the Commission, and sets a timetable for technical, linguistic, and financial as- second priority topic of the Czech Presi- each project. The action plan takes into pects of e-Justice, the main items of dency, i.e., the support and facilitation account the communication mentioned which are as follows: In the technical of an efficient use of video conferencing

eucrim 1–2 / 2009 | 21 NEWS – European Union

in cross-border legal proceedings. The  Second, intensifying the work on streamline procedures and reduce costs. project on video conferencing should video conferencing. The Commission’s communication pro- culminate in the creation of electronic As far as the portal is concerned, the poses an overall strategy to reconcile all order applications for cross-border vid- Member States and the Commission efforts related to e-Justice. In the long eo conferences. reached a common understanding on the run, an efficient e-Justice system may eucrim ID=0901067 content of the first release of the portal, improve access to justice, the coopera- recorded in the draft terms of reference tion among legal authorities, and the ef- Council: Monitoring the State of Play for the Commission’s IT contractor. Fur- fectiveness of the justice system. of e-Justice thermore, several significant documents The communication presents the Com- Since the beginning of 2009, the e-Jus- were drawn up, including a detailed mission’s main priorities for action in the tice project has regularly been on the roadmap. e-Justice area within the next 5 years: agenda at ministerial meetings in the As far as video conferencing is con-  Creating a European e-Justice portal Council. cerned, the working group agreed that (see above). According to the Communi- On 16 January 2009, the Ministers for video-conferencing functionalities should cation, the portal will have the following Justice and Home Affairs discussed the already be part of the first release of the three functions: (1) providing European topic of video conferencing at their in- European e-Justice portal in December citizens with information, in their lan- formal meeting in Prague. The Ministers 2009. Under the Czech Presidency the guage, on the respective Member States’ agreed that video conferencing is an ef- following documents were finalised: judicial systems and procedures, includ- ficient tool by which to accelerate cross-  Policy document, with a long-term ing relevant and updated information on border judicial proceedings while lower- vision for the development of videocon- the rights of defendants and victims in ing their costs. Following this meeting, ferencing in the period 2009-2013 and criminal proceedings as well as on the the Czech Presidency drew up an infor- beyond; remedies available before the courts of mation booklet and a manual on cross-  Comprehensive manual for practi- other Member States in the event of cross- border video conferencing in the EU. tioners, covering legal, technical and border disputes; (2) referring visitors to eucrim ID=0901068 practical aspects of cross-border video existing sites (Eur-lex, Pre-lex, SCAD- At its meeting on 26-27 February conferencing in civil, commercial, and Plus, Eurovoc and IATE), to European 2009, the JHA Council reiterated the im- criminal matters; legal institutions and to the various ex- portant work on the promotion and facil-  User-friendly booklet to raise general isting legal networks and their tools, itation of the use of video conferencing. awareness of and provide general infor- and (3) in the long term, enabling direct It agreed that further work will also in- mation on cross-border video conferenc- access to certain European procedures clude the examination of a booking sys- ing as a first reference. (e.g., using the portal to pay court fees). tem for arranging video conferences and In addition, work has been started to  Continuing the interconnection of interpretation via video conferencing. include into the portal updated informa- criminal records; eucrim ID=0901069 tion on all courts with video conferenc-  Creating a network of secure ex- At its meeting on 4-5 June 2009, the ing equipment in the Member States. changes by which to share information Ministers for Justice and Home Affairs eucrim ID=0901071 among judicial authorities; fixed the date for the launch of the Eu-  Facilitating the use of video con- ropean e-Justice portal: 15 December Commission: Communication on ferencing during judicial proceedings, 2009. The portal will be developed fur- a European e-Justice Strategy since the existing instruments adopted at ther by the Swedish Council Presidency The European Commission already gave the European level remain underused; during the second half of the year 2009. an impetus to the discussion on Euro-  Developing automated translation eucrim ID=0901070 pean e-Justice in its communication of tools, which make it possible to identify The Council Presidency and the com- 30 May 2008 to the Council, the Euro- those elements useful for another case; petent Council working group both re- pean Parliament, and the European Eco-  Setting up a database of legal transla- port regularly on their progress as to the nomic and Social Committee (EESC) tors and interpreters. implementation of the e-Justice Action concerning a European e-Justice strat- In general, the Commission is to Plan. In the first half of the year 2009, egy (COM (2008) 329 final). coordinate the e-Justice initiatives by the Czech Council Presidency mainly Currently, the term “e-Justice” stands encouraging the exchange of best prac- concentrated on two aspects: for various initiatives at the European tices. Furthermore, the Commission is to  First, bringing on track the said Euro- and national levels to put information design and set up the European e-Justice pean e-Justice portal by December 2009, and communication technologies in the portal (see above). as initially planned; service of judicial systems in order to eucrim ID=0901072

22 | eucrim 1–2 / 2009 Cooperation

European Parliament: Reaction First of all, the EDPS emphasises his undertake cross-border transactions with to the e-Justice Strategy support for a comprehensive approach official registries in the Member States On 18 December 2008, the European to e-Justice. He recommends that the on, e.g., recorded insolvencies, company Parliament adopted a resolution with future portal should not only provide registrations, land registrations, etc., and recommendations to the Commission information on criminal proceedings to secure communication with judicial on e-Justice. Overall, the Parliament en- and on civil and commercial judicial authorities in other Member States. dorsed the Commission’s plans and made systems, but also on administrative judi- As for human rights aspects, the CCBE some amendments to the presented com- cial systems, i.e., administrative law and put forward the following statements: munication. First of all, the Parliament complaint procedures, accompanied by  When using video conferencing, in proposed the use of specified terms, such information on data protection rules and particular in cross-border criminal pro- as “EU e-Justice” or “EU-Justice”, in or- national data protection authorities. The ceedings, it should be born in mind that der to clearly define the matters covered EDPS also issues a reminder to ensure this technique has a considerable impact by EU action. The Council agreed in its that the processing of personal data for on the fundamental rights of defendants. above-mentioned action plan to rename purposes other than those for which they Its usage may, for instance, deprive the the e-Justice programme “European were collected should respect the spe- defendant of the possibility to gain per- e-Justice”. cific conditions laid down by applicable sonal access to lawyers or build up trust The Parliament also recommended data protection legislation. He suggests and confidence with the lawyer during further development of the potential of the allocation of clear responsibilities to the proceedings. Moreover, judges may new technologies to prevent and fight all actors processing personal data within not be able to assess the defendant’s ap- transnational crime. Furthermore, the the envisaged systems as well as clarifi- pearance and responses by means of a Parliament strongly supported video cation of the Commission’s responsibil- video-link, a situation that is already conferencing to improve the taking of ity for common infrastructures. problematic in legal practice at present. evidence in other Member States and eucrim ID=0901074  Many fundamental rights issues are suggested a broad use of new technolo- at stake if projects come to light that gies within the European judicial area. CCBE The View of European Lawyers link criminal databases, involving such The resolution is a reminder to make on e-Justice questions as the definitions of criminal fundamental rights, procedural safe- In March 2009, the Council of Bars and offences, access rights to the databases, guards in criminal proceedings, and data Law Societies of Europe (CCBE) pre- purposes of data usage, rectification of protection integral parts of the drafting sented an opinion regarding the EU’s misinformation, etc. and implementation of the Action Plan developments in e-Justice. The CCBE eucrim ID=0901075 on e-Justice. The Parliament also warns represents the national bar associations the Commission against the possible with more than 700,000 European law- fragmentation that may result from all yers throughout Europe, including non- the different national initiatives related EU Member States. The opinion of the Law Enforcement Cooperation to e-Justice. Ultimately, the resolution CCBE focused on two issues: first, the requests the Commission to develop e-justice portal and, second, human rights Financial Support of JITs Secured e-learning tools for the judiciary in the concerns in the context of e-Justice. On 15 July 2009, Eurojust announced context of e-Justice. As regards the European e-Justice that Joint Investigation Teams (JITs) eucrim ID=0901073 portal, the association made the follow- continue to be eligible for direct and tar- ing remarks: geted financial support from Eurojust. EDPS: Opinion on the e-Justice  Citizens should have a single access The money is granted by the European Strategy point when finding a lawyer in Europe. Commission as part of the programme On 19 December 2008, the European In this context, the CCBE recommends “Prevention and Fight against Crime”. Data Protection Supervisor, Peter Hus- interlinking existing lawyers’ directo- The project is supported by a 95% co-fi- tinx, delivered his opinion on the Com- ries in the different Member States and nanced grant of approximately € 300,000 mission’s communication towards a Eu- allocating means to remove different and runs until December 2010. The ob- ropean e-Justice strategy. The EDPS’s languages, different navigation systems, jective of the grant is to allow for the opinion comments on the communica- etc., which currently hamper citizens’ financial and logistical support of JITs. tion as far as it relates to the processing access to lawyers in other EU Member With the grant, Eurojust intends to coun- of personal data, the protection of pri- States. ter potential difficulties with JITs, - par vacy in the electronic communications  The portal should offer e-identity ticularly travel and accommodation and sector, and the free movement of data. management, thus enabling lawyers to interpretation/translation costs. Also gaps

eucrim 1–2 / 2009 | 23 NEWS – European Union in infrastructure and facilities could be the Council. The dispute concerns the legislative resolution of 17 December remedied by the grant. However, it has recurring issue of the search for the cor- 2009. In general, the EP shares the Com- been clarified that the funding is not in- rect legal basis, due to the pillar’s divi- mission’s approach and supports the tended to finance the entirety of a JIT. sion of the European Union. The ques- concentration of the proposal on those eucrim ID=0901076 tion is whether the action can be based four offences responsible for most fatali- on the first pillar (transport policy) and ties. However, the EP addresses several Prosecution of Traffic Offences – thus adopted under the co-decision pro- issues with a view to improving the pro- Commission Proposal under Scrutiny cedure or not. Some governments of EU posal, including the following: The European legislative institutions are Member States are blocking the measure  The EP details guidelines for EU- further working on bringing on track a because they are of the opinion that a wide road safety concerning the four proposal of the Commission for a Direc- third-pillar instrument (cooperation in offences; by fixing certain principles, tive facilitating cross-border prosecution criminal matters) should be the appro- the guidelines should ensure minimum of traffic offences (for the proposal, see priate legal basis. They are headed for comparable criteria regarding checking eucrim 1-2/2008, p. 45). Studies com- confrontation with other EU Member operations or automatic checking equip- missioned by the Commission show that States, the Commission, and the Euro- ment. non-residents account for a dispropor- pean Parliament, which strongly support  The EP introduces a time limit for tionately high number of road traffic ac- the solution via a Directive, i.e., the first prosecution, i.e., no financial penalty cidents, particularly as regards speeding, pillar. shall be issued in respect of an offence yet sanctions imposed for offences com- The French government sought a way committed before the date of entry into mitted on the territory of Member States out of the dilemma during its Presidency force of the Directive. other than the driver’s country of resi- in the second half of 2008. However,  Although the EP agrees that the dence are most frequently not enforced. the progress report of December 2008 Framework Decision 2005/214/JHA on To this end, the proposal of March 2008 does not offer a clear solution on how the application of the mutual recognition provides for facilitating the enforcement the work should continue. The French principle to financial penalties applies of penalties on drivers who have com- government ultimately considered the to the follow-up of the offences, the EP mitted an offence in a Member State following three options on how to pro- is in favour of other enforcement safe- other than that in which their vehicle is ceed: guards if the FD is not applicable. registered.  Continue negotiations for a first-pillar  Several amendments concern im- The core element of the proposal is legal instrument on the basis of the tech- provements in the protection of personal the establishment of a European network nical work initiated; data, taking into account the concerns for electronic data exchange, operated by  Establish a third-pillar instrument voiced by the European Data Protection national authorities in charge of vehicle that could usefully incorporate measures Supervisor (see below). registration documents. The information to increase efficiency in the enforcement  Special attention is paid in the EP’s exchange shall cover information in four of cross-border road safety sanctions; resolution on informing European driv- cases: (1) speeding; (2) driving under  Combine the first two options, makers about the implementation of the the influence of alcohol; (3) non-use of ing a clear distinction between those el- Directive. a seat belt; and (4) failing to stop at a red ements falling under the first and third  Last but not least, the EP proposes traffic light – offences that are the lead- pillars. an obligation for an evaluation of the ing causes of accidents and road deaths. In the first half of 2009, the Czech Directive based on a report by the The following news items summarise Presidency has not pursued the matter Commission. the different opinions put forward after with priority. The adoption of the legis- eucrim ID=0901078 the proposal was tabled. lation may be left open until the Lisbon Treaty enters into force. Under the Lis- EDPS: Positive Reaction on Proposed Council: EU Governments Divided bon Treaty, criminal justice legislation System of Cross-Border Exchange of on How to Proceed with Road Safety would be adopted under co-decision Information on Traffic Offenders Proposal rules. In May 2008 already, the European Data Although the EU Member States ex- eucrim ID=0901077 Protection Supervisor (EDPS), Peter pressed their agreement on the objectives Hustinx, presented his official opinion on of the Commission proposal facilitating EP in General Favour of Better the Commission proposal for a Directive cross-border enforcement of legislation Enforcement of Traffic Offences facilitating cross-border enforcement in in the field of road safety, there seems The European Parliament (EP) largely the field of road safety. The EDPS was to be a deadlock in the procedure within backed the Commission proposal in a already involved in the preparatory work

24 | eucrim 1–2 / 2009 Foundations of the Commission’s draft. The present- ing the scope of the planned Direc- driving licence, which may or may not ed opinion analyses the legitimacy and tive beyond what was proposed by the be imposed alongside fines. necessity of the measures; the quality of Commission. First, the legal framework Furthermore, the EESC recommends data collected in relation to the purpose; should include all offences that have a that the Commission express more clear- the rights of the data subjects and the bearing on improving road safety. Sec- ly which system for the exchange of in- conditions to exercise them; and, finally, ond, the EESC would like the Directive formation is being considered, while the conditions for the transfer of data to not only apply to sanctions impos- the EESC prefers expanding existing through an electronic network as well as ing financial penalties, but also to other electronic networks (e.g. the EUCARIS its security aspects. tools, such as a penalty-points driving system) for the data exchange for the In conclusion, the EDPS considers licence, vehicle impoundment, and the purposes of the Directive. that “the proposal provides for sufficient temporary withdrawal of an offender’s eucrim ID=0901080 justification for the establishment of the system for the cross-border exchange of information, and that it limits in an adequate way the quality of data to be collected and transferred.” He also welcomes the redress procedure foreseen in the proposal and, in particular, the fact that access to personal data will be possible in the country of residence of the data subject. However, the EDPS is not fully sat- Council of Europe isfied with the information available to Reported by Dr. András Csúri* data subjects and for which he recommends some improvements, in particular as to offence notification – an issue on 12 May 2009 on the occasion of the Foundations which was also taken up by the Euro- Committee’s 119th meeting in Madrid, pean Parliament in its above-mentioned Spain. The declaration states that, since legislative resolution of 17 December 60th Anniversary of Council of Europe 1949, the organisation has been work- 2008. ing to achieve a greater unity among its Finally, the EDPS cautions that the The Council of Europe celebrates its members for the purpose of safeguard- proposed electronic network may not 60th anniversary in 2009. The Council ing and realising the ideals and princi- lead to interoperability with other data- of Europe was founded on 5 May 1949 ples that are their common heritage. banks or even to the creation of a central by 10 countries that signed the Treaty of The key issues of the declaration are database of traffic offences. London. The following eucrim ID con- as follows: eucrim ID=0901079 tains the special web site of the Coun-  Human rights are universal and indi- cil of Europe on its 60th anniversary. It visible. They are the inalienable right of EESC: Broad Backing of Commission’s includes diary dates and an interactive each and every individual. Idea for Better Law Enforcement of map, a photo gallery, videos, and further  Observance of the engagements un- Traffic Offences background information on the organi- dertaken by CoE Member States under In September 2008, the European Eco- sation’s history. the European Convention on Human nomic and Social Committee (EESC) eucrim ID=0901081 Rights (ECHR) is ensured by the Eu- commented on the said Commission’s ropean Court of Human Rights, which proposal for better enforcement and su- Declaration to Mark 60th Anniversary represents the judicial dimension of this pervision of traffic offences committed of Council of Europe action (for the foundation of the Europe- in another Member State. The opinion of The 60th anniversary was commemo- an Court of Human Rights 50 years ago, the EESC was published in the Official rated in a declaration by the Committee see below). In this context, the declara- Journal C 77 of 31 March 2009. of Ministers – which comprises the Min- tion reaffirms the importance of the rapid The EESC appreciates the proposal as isters of Foreign Affairs of the Member a sound approach to dealing effectively States of the Council of Europe or their * If not stated otherwise, the following news items on with traffic offences committed abroad. permanent diplomatic representatives in the Council of Europe were reported by Dr. András However, the EESC suggests expand- Strasbourg. The declaration was issued Csúri.

eucrim 1–2 / 2009 | 25 NEWS – Council of Europe implementation of the measures aimed Lluís Maria de Puig, and the Committee for the legislative activities of the Coun- at improving the ECHR system and, in of Ministers’ Chairman Miguel Angel cil of Europe in the area of criminal jus- particular, those contained in Protocol Moratinos expressed their appreciation tice. In this context, the Council stresses No. 14, and it points out the provisional of the 60-year existence of the organisa- that the Conventions of the Council of application of certain procedural reforms tion in a joint statement. Europe “form part and parcel of the bed- foreseen in Protocol No. 14. “In the first sixty years of its exist- rock of cooperation in criminal matters”  The outstanding work of the Coun- ence, the Council of Europe has helped and that the Council of Europe has de- cil of Europe’s Commissioner for Hu- to reconcile a continent after decades veloped several fundamental Conven- man Rights, both in the field of human of ideological divide, created a Europe- tions in view of the approximation of rights and by sustained dialogue with the wide court in which individuals can criminal legislation in Europe, such as Member States. seek protection of their human rights, the Conventions on Corruption, Money  Determination to combat terrorism, outlawed the death penalty in Europe, Laundering and Terrorist Financing, paying due attention and giving support and produced an arsenal of more than Action against Trafficking in Human to victims, with strict respect for human 200 international treaties to defend and Beings, and the Protection of Children rights and the rule of law. extend the Council of Europe values of against Sexual Exploitation and Sexual  Commitment to strengthening the democracy, human rights and the rule of Abuse, etc. rule of law throughout the continent, law,” the three persons representing the Second, the Council reaffirms its in- building on the standard-setting of the main CoE institutions say. Furthermore, tention to continue the close cooperation Council of Europe and its contribution to they underscore that “[t]he mandate of between the EU and the CoE in the area the development of European and inter- the Council of Europe has not changed, of criminal justice. national law. In this context, the CoE’s but the circumstances in which we op- Third, the Council calls upon EU work through legally binding conven- erate have changed dramatically. Tech- Member States to sign, ratify, and imple- tions and other instruments is stressed, nological, scientific, political, social and ment the CoE Conventions in the fields and it is underscored that the work will economic developments have brought of cooperation in criminal matters and be continued, particularly in response to about new opportunities, but also new approximation of criminal legislation the serious threats represented by cor- threats to democracy, human rights and “when appropriate, in particular when ruption, money laundering, organised the rule of law.” the provisions of these conventions are crime, and cybercrime. eucrim ID=0901083 integrated in the acquis of the EU.”  The future focus on action to make By Thomas Wahl gender equality a reality as well as pro- eucrim ID=0901084 motion of the rights of children, including the need for efforts to fight human Relations between the Council Report on Cooperation between the trafficking as well as the prevention and of Europe and the European Union Council of Europe and the European combating of violence against women Union and children. JHA Council Gives Statements on At its 119th meeting in Madrid on  Intensification of the CoE’s coop- Relationship between EU and CoE 12 May 2009, the Committee of Min- eration with other international organi- in the Area of Criminal Justice isters assessed the cooperation between sations. In this context, the drafters of Despite extensive collaboration within the Council of Europe and the European the declaration welcomed the progress the EU in the fields of judicial coopera- Union in a report and took stock of the already made with respect to the Euro- tion and the approximation of criminal implementation of the Memorandum pean Union, and they expressed their legislation, their development in the EU of Understanding (MoU) in 2008. The appreciation of the new impetus from cannot be regarded without looking at MoU between the two organisations was the Memorandum of Understanding the legislative work of the Council of signed on May 2007 (for the MoU, see between the two organisations (for the Europe in the area of criminal justice. eucrim 1-2/2007, pp. 41-42 and eucrim MoU, see eucrim 1-2/2008, pp. 46-47 This was one of the conclusions of the 1-2/2008, pp. 46-47). Among the key is- with further references). Council of the EU Member States’ Jus- sues of the progress report are: eucrim ID=0901082 tice and Home Affairs Ministers, who  Cooperation nowadays covers most addressed the relationship between the fields of competence of the Council of Joint Statement on 60th Anniversary EU and the Council of Europe in the Europe, in particular human rights, de- by CoE’s Key Institutions criminal law field at their meeting in mocracy, and the rule of law. On 5 May 2009, the CoE’s Secretary February 2009.  Cooperation takes various forms, General Terry Davis, PACE President The Council first reiterates its respect from the exchange of information, us-

26 | eucrim 1–2 / 2009 Foundations ing the Council of Europe’s monitoring where Council of Europe monitoring event-oriented website that will be en- mechanisms, to joint activities. mechanisms constitute a unique source hanced and updated throughout the year.  The two organisations have strength- of information (e.g., the Committee for The website was launched on 20 April ened coherence between their respective the Prevention of Torture) or where the 2009 to celebrate the fiftieth anniversary legal standards in the fields of human Council of Europe can make other rel- of the inauguration in 1959. The Court rights and the rule of law. evant contributions (e.g., in the revision held its first hearing from 23 to 28 Feb-  The year 2008 was marked by a quan- of the EU Council Framework Decisions ruary 1959 and was solemnly installed titative and qualitative increase in co-op- on combating terrorism, on combating on 20 April 1959 on the occasion of the eration between the Council of Europe sexual exploitation of children and child celebrations marking the tenth anniver- and the European Union. Results and pornography, and on combating traffick- sary of the Council of Europe. achievements, as well as areas for pos- ing in human beings, in accordance with The website mentioned presents all sible improvement, have become more relevant Council of Europe Conven- the events of the anniversary year, such visible. tions). as the Open Day on 20 September 2009  Legal co-operation between the  On the basis of the common under- and a large number of documents on the Council of Europe and the European standing that certain Council of Europe Court’s history and future and on the Commission covers a wide variety of Conventions and certain EU legislative Member States of the Council of Eu- fields, among them criminal justice, the instruments are complementary, the rope. By means of an interactive map of improvement of judicial co-operation, as accession of EU Member States and, the 47 Member States, basic information well as the fight against terrorism, mon- where appropriate, the European Union/ can be found on each State, such as the ey laundering, and trafficking in human European Community to certain Council date it ratified the Convention, the judg- beings. of Europe Conventions is to be further es elected, major cases brought against  The Council of Europe’s standard- encouraged. In this context, the initia- the State, and the main statistics. setting capacity is a valuable asset when tive of the French Presidency of the EU Original historical documents have further developing EU strategies in the Council for an EU Council conclusion also been scanned and can be consulted field of judicial co-operation in criminal encouraging the EU Member States to on-line, including texts on the first case matters. In the face of growing threats ratify relevant Council of Europe Con- judged by the Court in 1960 (Lawless v. to privacy and data protection, co-oper- ventions in the criminal justice field in Ireland). Certain documents, such as the ation in this field could be intensified, order to reinforce coherence among their “Recommendation on the establishment in particular with respect to the relevant standards is worth noting. of the Court” (1958), have been declas- standards of both organisations. The following ID refers (1) to the re- sified so that they could be added to the  The European Committee for the Ef- port of the Committee of Ministers regard- site. ficiency of Justice (CEPEJ), the Europe- ing the cooperation between the CoE and An overview of 50 years of activity an Commission for Democracy through the EU, (2) a report on the stocktaking of and developments can be gleaned from Law (Venice Commission), and the the implementation of the Memorandum various reference documents includ- Council of Europe Committee of Legal of Understanding between the Council ing: preparatory work of the Convention, Advisers on Public International Law of Europe and the European Union (1 Jan- simplified version of the Convention, an- (CAHDI) have established very good uary-31 December 2008), and (3) a paper nual report on execution of judgments, working relations with EU institutions. on joint programmes between the Council case-law information, amendments to the Certain specific policy areas, such as of Europe and the European Commission Convention and Rules of Court, as well as the fight against terrorism or the protec- as of 1 January 2009. reports on future reforms of the Court. tion of victims of violent crimes, could eucrim ID=0901085 eucrim ID=0901086 provide the opportunity to enhance cooperation by means of joint activities. Protocol No.14bis to Improve  Coherence between the standards of the Effectiveness of the European the Council of Europe and EC/EU law European Court of Human Rights Court of Human Rights is of primary importance. The co-ordi- Because of the persistent refusal by Rus- nation of relevant legislative initiatives, ECHR Launches Special Website sia to ratify Protocol No. 14 to the Eu- through consultations at an early stage on 50th Anniversary ropean Convention on Human Rights, of the legislative process, is particularly The fiftieth anniversary of the European the European Court of Human Rights important to avoid inconsistencies. The Court of Human Rights is being cel- (ECtHR) and the CoE Member States practice of consultations has already ebrated in 2009 with a series of initia- seek ways out in order to maintain the been established in a number of areas tives, including the launch of a special effectiveness of the ECtHR due to the

eucrim 1–2 / 2009 | 27 NEWS – Council of Europe ever-accelerating influx of new applica- may provisionally apply the provisions via email to the applicant who must tions and a constantly growing backlog before entry into force, if they so wish. then print it, sign it, and forward it to of cases (see also previous eucrim issues Protocol No. 14bis is estimated to in- the Court with any relevant annexes and under “Council of Europe – Reform of crease the efficiency of the Court by 20- within the time-limit indicated. the European Court of Human Rights”). 25%. In the margins of the Ministerial eucrim ID=0901088 Protocol 14bis had been concluded Session, a Conference of the High Con- rather quickly: A working group of the tracting Parties to the Convention adopt- Second Report on Execution Committee of Ministers elaborated a ed a consensual agreement by virtue of of Judgments of European Court draft text of the Protocol in April 2009. which States may individually consent, of Human Rights The Parliamentary Assembly gave its on a provisional basis, to the direct ap- The Committee of Ministers of the Coun- opinion to the Protocol on 30 April 2009. plication of the two above-mentioned cil of Europe published, on 22 April On 12 May 2009, the Ministers for For- procedural elements of Protocol No. 14 2009, its second annual report on su- eign Affairs and representatives of the to the complaints filed against them. This pervision of the execution of the judge- 47 Council of Europe Member States fi- agreement is complementary to Protocol ments of the European Court of Human nally endorsed Protocol No. 14bis to the No. 14bis, since it opens a second legal Rights (for the first report, see eucrim European Convention on Human Rights path towards achieving the same result. 1-2/2008, p. 48). (CETS No. 204). The Protocol will in- Protocol 14bis is considered to be only a In 2008, 1,384 new judgments on crease the European Court of Human temporary measure until the final entry violations of the Convention on Human Rights’ short-term capacity to process into force of Protocol No. 14. Rights were brought before the Commit- applications, as it contains procedural Denmark, Ireland, and Norway were tee for supervision of their execution, provisions that would enable the Court the first CoE Member States to ratifiy thus bringing the number of pending cas- to work more efficiently. The Protocol Protocol No. 14bis, meaning that it will es to 6,614. The compensation awarded changes Arts. 25 (registry, legal secre- enter into force for these countries on to the victims in these new judgments taries, and rapporteurs), 27 (single-judge 1 October 2009. Iceland, Monaco, and amounted to some 55,5 million euros. formation, committees, Chambers and Sloevnia have also ratified the Protocol 400 cases were closed by final resolu- Grand Chamber), and 28 (competences so far. It will enter into force for these tions in 2008. of single judges and of committees) of states on 1 November 2009. For the ac- The introduction of the report stressed the Convention. ception of the provisional application of the close relationship between good ex- This new protocol will allow the im- Protocol No. 14, see table below under ecution, the proper implementation of mediate and provisional application of “Legislation”. the European Convention on Human two procedural elements of Protocol eucrim ID=0901087 Rights in the Council of Europe’s Mem- No. 14 with respect to those states that ber States, and the case-load of the Euro- express their consent. According to the ECHR Tests New On-line pean Court of Human Rights. Protocol, a single judge will be able to Application Form It underlined the importance of ensur- reject plainly inadmissible applications, On 23 February 2009, the European ing, after the finding of a violation of the whereas now this requires a decision by Court of Human Rights launched a new Convention, not only necessary legisla- a committee of three judges. Further- service on a trial basis – to enable ap- tive and other changes, but also effective more, the competence of three-judge plicants to fill out the Court’s application domestic remedies, so that other victims committees will be extended to declare form on-line via its Internet site. At first, may obtain reparation rapidly without applications admissible and decide on it will only be available for applicants us- having to go before the European Court their merits in well-founded and similar ing Swedish or Dutch application forms. of Human Rights. cases, where a well-established case law Depending on the outcome of the trial, The Director General of Human of the Court already exists. Currently, it may subsequently be extended to the Rights and Legal Affairs of the Council these cases are handled by chambers of other official languages of the Member of Europe stated that the report demon- seven judges. States of the Council of Europe. strates the importance of rapid execution Protocol No. 14bis was opened for When filling out the form, applicants and the complexity of many execution is- signature on 27 May 2009 and needs the can save their changes at any stage and sues as well as the need for constructive ratification by three States to enter into return to complete the form at any time. interaction between all parties involved force. Its provisions shall apply to appli- Once the form has been fully completed, in order to arrive at good solutions. cations pending before the Court against the applicant can submit it. This will Major developments of the execu- each of the States for which the Protocol trigger a service that will automatically tion process in 2008 were noted in the has entered into force. Member States send the completed version of the form report. Appendices present detailed sta-

28 | eucrim 1–2 / 2009 Foundations tistical information, both in general and the problem of delays in the payment of ness of human rights in Council of by State, and also a thematic overview compensation awarded, to simplify the Europe Member States; of major developments in the execution procedure, and to extend the scope of the  Identifying possible shortcomings of pending cases. The report also pre- remedy to include injunctions to expe- in law and practice concerning human sented the Committee of Ministers’ new dite the proceedings. rights; Recommendation (2008)2, in which the The Committee noted that the 2006  Facilitating the activities of national Committee provides recommendations reform on bankruptcy proceedings de- ombudsperson institutions and other hu- to improve the Member States’ capacity creased the number of proceedings and man rights structures; to implement the judgements of the Eu- expedited them by reducing the phase of  Providing advice and information re- ropean Court of Human Rights, e.g., to auditing claims. garding the protection of human rights designate a co-ordinator for the execu- eucrim ID=0901090 in the Coe Member States. tion process or to keep, as appropriate, The activities of the Commissioner national parliaments informed. for Human Rights include ongoing dia- eucrim ID=0901089 logues with governments and country Human Rights and Legal Affairs visits, thematic recommendations and Committee of Ministers’ Resolution awareness-raising as well as promot- Concerning Excessive Length of In the following introductory note, an ing the development of national human Judicial Proceedings in Italy important institution of the Council of rights structures. The Commissioner In the context of the execution of Europe is briefly introduced: The Com- also presents an annual report analysing judgements, the Committee of Min- missioner for Human Rights. The out- the human rights situation in Europe. isters adopted, on 26 March 2009, a standing work of the Commissioner in However, the Commissioner does not new Interim Resolution concerning the the past ten year was the occasion for take up individual complaints. excessive length of judicial proceed- a high amount of praise on the part of eucrim ID=0901091 ings in Italy. This new resolution is the the above-mentioned Madrid Declara- follow-up to Interim Resolutions CM/ tion of the Committee of Ministers of 12 Police Misbehaviour to Be Investigated ResDH(2007)2 concerning the problem May 2009. Recently, the Commissioner by Independent Bodies of excessive length of judicial proceed- published two important statements On 12 March 2009, the Commissioner ings in Italy and CM/ResDH(2007)27 promoting the respect for human rights for Human Rights released an opinion on Italian bankruptcy proceedings. The throughout the CoE Member States. on investigating complaints against the Committee noted the progress achieved These statements are reported on below. police. In it, he stated that an independ- through the measures adopted so far by ent and effective police complaints sys- the Italian authorities in the fields of civ- The Commissioner for Human Rights tem is of fundamental importance for il, criminal, and administrative proceed- The Commissioner for Human Rights a democratic and accountable police ings. It underlined, however, that, given is an independent institution within the service. Further, he underlined that such the substantial backlog in the civil and Council of Europe, mandated to pro- complaints mechanisms could help en- criminal fields (approximately 5,5 - mil mote the awareness of and respect for hance public trust and confidence in the lion pending civil cases and 3,2 million human rights in the Member States. The police and ensure that there is no impu- pending criminal cases) as well as in the office of the Commissioner was insti- nity for misconduct or ill-treatment. He administrative field, a final solution to tuted in 1999 by Resolution (99) 50. The also underlined the importance of com- the structural problem of the length of Commissioner is elected by the Parlia- plying with the five principles devel- proceedings still needs to be found. mentary Assembly for a six-year non- oped by the European Court of Human Therefore, the Committee called upon renewable term of office. Current Com- Rights, namely independence, adequacy, the Italian authorities to actively pursue missioner, Mr. Thomas Hammarberg, promptness, public scrutiny, and victim their efforts to ensure the swift adoption assumed the position on 1 April 2006. involvement. of the measures already envisaged for The fundamental tasks of the Commis- The Commissioner highlighted that civil and criminal proceedings and to ur- sioner for Human Rights, according to such independent bodies should have gently adopt ad hoc measures to reduce the Resolution are: oversight of the police complaints sys- the civil, criminal, and administrative  Fostering the effective observance tem and share responsibility with law backlog. It encouraged the authorities of human rights and assisting Member enforcement officials. He also stated that to consider amending Act No. 89/2001 States in the implementation of Council the expectation that criminal or discipli- (the Pinto Law) with a view to setting of Europe human rights standards; nary proceedings will be brought against up a funding system in order to resolve  Promoting education in and aware- police officers’ misbehaviour is an im-

eucrim 1–2 / 2009 | 29 NEWS – Council of Europe portant protection against impunity and posal of one had to be accepted by the Regarding the criminalisation of cor- essential for public confidence in the po- other. Thanks to the broad jurisdiction, it ruption, the report states that, despite the lice complaints system. is furthermore easy to prosecute in Bel- fact that Spain has been a member of eucrim ID=0901092 gian cross-border corruption offences, GRECO since 1999, it has not yet rati- even though GRECO recommended fied the 1999 Criminal Law Convention Recommendation on Systematic Human clarification of certain aspects. The re- on Corruption as well as its Additional Rights Work in CoE Member States port invited Belgium to withdraw or not Protocol of 2003. GRECO identified On 18 February 2009, the Commissioner renew its reservations to the Convention, some important shortcomings, above all for Human Rights issued a recommen- which particularly concern the incrimi- that the complex legal framework with dation on systematic work to implement nation of trading in influence and that of respect to bribery in the public sector is human rights at the national level, which bribery in the private sector. particularly deficient as regards its inter- demonstrates how States can implement Finally, the effectiveness of the pro- national dimension. Moreover, bribery these rights effectively by using baseline visions were able to be strengthened by in the private sector is not criminalised studies, relevant action plans, and other recalling that receiving an advantage – at all. The latter is a serious gap, accord- indicators. within the meaning of the Convention – ing to the report, since this form of cor- The Commissioner stressed that de- is an offence. ruption may cause significant damage veloping an action plan that presents In view of the transparency of politi- to society at large given the value of the problems and corresponding activities cal party funding, GRECO states that the sums (and potential bribes) involved is a sign of commitment to human rights. legislation of 1989 on the financing of in business transactions. GRECO also It brings national, regional, and local political activities, in conjunction with a found some of the penal sanctions to authorities, national human rights struc- significant level of public funding of po- be too weak with regard to bribery and tures, civil society representatives, and litical parties, has seemingly led parties trading in influence. other stakeholders together in the effort to exercise financial moderation, so that In view of the assessment, GRECO ad- to implement common human rights the country is no longer suffering from dressed nine recommendations to Spain, standards. the major political and financial scandals among them swift ratification of the Crim- eucrim ID=0901093 of the past. inal Law Convention on Corruption, the GRECO remarked that the diverse criminalisation of bribery in the private activities and structures of the political sector (Arts. 7 and 8 of the Convention), parties should be better accounted for and clarification that immaterial advan- in the financial statements. The report tages are covered by the relevant provi- Specific Areas of Crime also stated that there is still room for im- sions of the Spanish Penal Code. provement on the rules governing dona- Concerning transparency of party tions, as well as the control mechanism, funding, GRECO acknowledged the Corruption since the parliamentary control com- efforts made in this area through new missions have not been able to establish legislation since 2007. GRECO advised Group of States against Corruption their authority over time and remain improvements to the system by granting Publishes Report on Belgium shackled by their political composition. public access to meaningful and timely On 22 June 2009, GRECO published its Furthermore, a wide range of sanctions information on political party accounts, Third Round Evaluation Report on Bel- exist to help enforce the rules, but their including financial information on local gium., focusing on the criminalisation of proportionality and dissuasiveness could branches and political foundations. It corruption (Theme I) and the transpar- be questionable in certain cases. noted that the existing sanctioning sys- ency of party funding (Theme II). The report addressed a total of 15 rec- tem needs further regulation and that the In the field of criminalisation of cor- ommendations to Belgium (4 on incrim- financial discipline of political parties ruption, numerous aspects of Belgian ination and a further 11 on the transpar- should be strengthened, in particular by law met the requirements of the Criminal ency of party funding). reinforcing their internal audit control. Law Convention on Corruption and its eucrim ID=0901094 Among the six recommendations in Additional Protocol. Practice reflects the this area, GRECO stressed the need to country’s genuine capacity to bring vari- GRECO: Third Round Evaluation Report clearly define infringements of political ous corrupt activities before the courts, on Spain finance rules and to introduce effective, especially following abandonment of On 28 May 2009, GRECO published proportionate, and dissuasive sanctions the need to establish a prior agreement its Third Round Evaluation Report on for these infringements, particularly by between the two parties or that the pro- Spain. extending the range of penalties avail-

30 | eucrim 1–2 / 2009 Specific Areas of Crime able and enlarging the scope of the sanc- GRECO: Joint First and Second Round the vast reforms underway require deter- tioning provisions to cover all persons/ Evaluation Report on the Russian mined implementation, including thor- entities. Federation ough staff training. It is hence to be wel- eucrim ID=0901095 On 30 April 2009, GRECO published its comed that the fight against corruption Joint First and Second Round Evaluation is recognised as a priority at the highest GRECO: Third Round Evaluation Report Report on the Russian Federation, which political level in the Russian Federation. on Norway had joined GRECO in 2007. Russia rati- A Presidential Council and a National GRECO published, on 5 May 2009, its fied the CoE Criminal Law Convention Anti-corruption Plan (NACP) have been Third Round Evaluation Report on Nor- on Corruption in 2006 and signed the established, but these efforts must be way. Additional Protocol to the Criminal Law complemented with a clear and coherent Regarding the criminalisation of cor- Convention on 7 May 2009. strategy as well as a plan of implementa- ruption (Theme I), GRECO found that GRECO found corruption to be a tion according to GRECO’s report. the provisions on corruption and trad- widespread systemic phenomenon in Among the 26 recommendations to ing in influence in the Norwegian Penal the Russian Federation, one which af- Russia, the report primarily deals with Code are of a high standard and fully in fects the society as a whole, the public the need to establish a comprehensive line with the Criminal Law Convention administration, including the institutions national anti-corruption strategy, on the on Corruption and its Additional Proto- in place to counteract corruption (the po- basis of the NACP – covering the fed- col. Nevertheless, in order to fine-tune lice and the judiciary), and the business eral, regional, and local levels of the existing provisions, the report recom- sector. The report focused on general an- Russian Federation. In addition, the mends the introduction of a provision ti-corruption policies, the independence strategy should emphasise the need for on aggravated trading in influence and of the judiciary, immunity from prosecu- corruption prevention and transparency the reconsideration of the use of juries, tion for corruption offences, the depriva- in all sectors of public administration. It instead of the current panel of only lay- tion of benefits drawn from corrupt acts, should also be ensured that civil society men, in appeal cases involving aggra- measures to counter corruption in public can make a significant input to the over- vated corruption. administration as well as the prevention all strategies against corruption. Concerning transparency of party of legal persons being used as shields for eucrim ID=0901097 funding (Theme II), GRECO commends corruption. Norway for the changes that the legal GRECO stressed the need to improve framework for the funding of political a proper distribution of cases among parties underwent in 2006. However, the different law enforcement agencies and Money Laundering picture of the possible (financial) ties of for the enhancement of their interdepart- political parties as well as the manner in mental cooperation. GRECO also noted MONEYVAL: Annual Activity Report which they spend public funding needs to that further efforts are crucial towards for 2008 be as comprehensive and easy to under- strengthening the independence of the On 5 June 2009, the CoE’s MONEY- stand as possible. In addition to the cur- judiciary in order to combat the com- VAL Committee (Committee of Ex- rent disclosure of income, parties should mon view in Russia that the judiciary is perts on the Evaluation of Anti-Money therefore also be required to provide affected by undue influence and corrup- Laundering Measures and the Financing additional information on their expendi- tion. Regarding the large number of of- of Terrorism) published its Annual Ac- ture, as well as their debts and assets. ficials who enjoy immunity from crimi- tivity report for the year 2008. In 2008, The report states furthermore that the nal proceedings, the report suggested a MONEYVAL adopted nine Third Round current supervisory mechanism provides reduction in the number of immunity mutual evaluation reports, seven first for a very limited and mainly formalistic cases to a minimum as well as a thor- progress reports, two second progress supervision of party financing and re- ough revision of the procedure for lifting reports, and it took action under the lies too heavily on the media to detect such immunity. The report further states Compliance Enhancing Procedures in and uncover possible dubious funding that, although reforms on modernising respect of two of its jurisdictions. The practices – a matter that needs to be ad- the public administration are underway, report underlines that, in 2008, the Rules dressed. Finally GRECO suggested that legislation concerning access to public of Procedure were amended to shorten the current system would benefit from information has not yet been adopted the time between adoption of the mutual the introduction of more flexible sanc- so that comprehensive and precise legal evaluation report and publication. The tions for violations of the Political Par- rules in this respect should be treated as report stresses the importance of regular ties Act. a matter of priority. reporting for all MONEYVAL countries eucrim ID=0901096 In general, the report underscores that once their AML/CFT Laws have been

eucrim 1–2 / 2009 | 31 NEWS – Council of Europe amended. For general information on posed persons, correspondent banking, Furthermore, no special laws or pro- MONEYVAL’s work, see also eucrim new technologies, and non face-to-face cedures exist relating to the freezing of 1-2/2007, p. 44. business. MONEYVAL criticised the terrorist funds or other assets of persons eucrim ID=0901098 low level of reporting by obliged entities designated by the United Nations Al- other than banks and called for further Qaida and Taliban Sanctions Commit- MONEYVAL: Third Round Evaluation efforts on the part of reporting entities as tee. As regards the organisational side, Report on Ukraine to how to detect suspicious transactions. lists of designated entities are distrib- On 25 May 2009, MONEYVAL pub- The extension of AML/CFT obliga- uted to reporting entities, but an effec- lished its Third Round Evaluation Re- tions to casinos was positive. However, tive mechanism to freeze such funds still port on Ukraine. Like the other country significant gaps were identified in the re- needs to be created. reports in the framework of the third port in respect of customer due diligence The financial intelligence unit (FIU) round of evaluations, the report analyses requirements, the supervision and sanc- for the Administration for the Preven- the implementation of international and tioning of casinos, all of which require tion of Money Laundering and Terror- European standards to combat money action. Furthermore, AML/CFT require- ist Financing as well as many of the law laundering and terrorist financing, as- ments have not yet been extended to real enforcement and supervisory bodies are sesses levels of compliance with the estate agents, dealers in precious metals relatively newly formed and were still in Financial Action Task Force (FATF) and stones, lawyers, notaries, other in- the process of recruiting at the time of 40+9 Recommendations and includes dependent legal professionals, company the visit of the MONEYVAL evaluation recommendations designed to improve service providers, and accountants. The committee, making it difficult to form a the country’s anti-money laundering and report urged the creation of appropriate view of their effectiveness. combating the financing of terrorism arrangements for their AML/CFT moni- As regards the preventive system, the (AML/CFT) system. toring. Law on the Prevention of Money Laun- The report on Ukraine states that the The report expressed appreciation dering and Terrorist Financing (entry country has made progress in develop- that the Ukrainian authorities have es- into force in January 2008) cover the ing its system for combating money tablished effective mechanisms to coop- elements concerning customer due dili- laundering and terrorist financing, and erate on operational matters to combat gence well. MONEYVAL is concerned, it has achieved numerous convictions money laundering and the financing of however, about the actual implementa- for money laundering and drug-related terrorism at the policy level. Ukraine is tion of the legal provisions, in particu- money laundering. However, its anti- also able to provide a wide range of in- lar regarding the beneficial owner iden- terrorist financing legal framework does ternational cooperation to foreign coun- tification and verification that a person not meet international standards and terparts. has the relevant authority to act. Despite needs to be reviewed, such as the frame- eucrim ID=0901099 adequate legal provisions with regard work in place for provisional measures to politically exposed persons, financial and confiscation that still has deficien- MONEYVAL: Third Round Evaluation institutions did not appear to be fully cies and needs to be modernised. Report on Montenegro aware of their obligations to institute The report also states that the Ukraine On 7 May 2009, MONEYVAL published proper procedures in order to address the has made efforts to ensure compliance its Third Round Evaluation Report on risk. The effectiveness of the reporting with UN Security Council resolutions Montenegro – the first since the declara- requirements was called into question but that the legal framework for the im- tion of independence in 2006. Overall, by the low number of suspicious trans- plementation of UN sanctions remains the Montenegrin authorities have made action reports filed by a limited number incomplete. MONEYVAL welcomed the considerable progress in establishing a of financial institutions and the absence fact that the State Committee for Finan- legal structure as well as law enforce- of reports from designated non-financial Monitoring (an administrative type ment and regulatory systems to counter cial businesses and professions. There of FIU) substantially meets international money laundering and the financing of were no reports on the financing of ter- standards and appears to be generally ef- terrorism, according to the report. rorism. fective. Although money laundering and ter- eucrim ID=0901100 However, the preventive system still rorist financing are criminalised under shows a number of gaps, such as ben- the Criminal Code, the offences are not MONEYVAL: Second Public Statement eficial ownership for customers who are fully consistent with international stand- on Azerbaijan natural persons, the way ongoing and ards. As regards the practical side, it is At its 29th plenary meeting (Strasbourg, enhanced due diligence is conducted, mentioned that there has been only one 16-20 March 2009), MONEYVAL is- measures dealing with politically ex- conviction for money laundering so far. sued a public statement on Azerbaijan

32 | eucrim 1–2 / 2009 Specific Areas of Crime in which the body expressed that it has ing corruption and terrorism financing. with international standards and good been concerned with deficiencies in the Also worthy of mention is a study vis- practices as well as MONEYVAL rec- AML/CFT regime in Azerbaijan since it for 13 supervisors and analysts from ommendations. 2006. MONEYVAL already published the Russian Federal Financial Monitor- At the closing conference of the a first public statement on 12 December ing Service that took place in the Czech MOLICO-Project on 10 July 2009 in 2008, which remains in effect. Financial Intelligence Unit (FIU) from Chisinau, experts confirmed the find- In its second statement, MONEYVAL, 11 to 14 November 2008. The visit fo- ings of the evaluation report that the on the one hand, welcomed the progress cused on supervision of the gambling project had achieved excellent results that had been made with the adoption of industry in view of the upcoming reform with regard to anti-corruption measures an AML/CFT Law on 18 February 2009 in this sector in Russia. The participants (corruption-proofing of legislation, risk and the steps that are now being taken discussed the issues related to reporting analyses, investigative capacities, anti- to complete the legal framework for an and inspection of companies in the in- corruption policies) and the creation AML/CFT regime. MONEYVAL also dustry and also visited several reporting of an effective system against money welcomed the progress that has been institutions in the gambling sector. laundering and the financing of terror- made in addressing many of MONEY- For further developments, refer to the ism that meets international standards. VAL’s previous concerns. On the other following Internet site. However, participants also pointed out hand, Azerbaijan was requested to fi- By Thomas Wahl that a number of follow-up measures nalise the legal structure quickly and eucrim ID=0901102 are required, particularly in view of the address other identified deficiencies remaining high perception of corruption and was, at the same time, encouraged Ukraine: MOLI-UA 2 in Moldova. The project was funded by to work closely with MONEYVAL to Within the framework of the MOLI-UA-2 the European Commission, the Swedish achieve this goal. project – a follow-up project against International Development Cooperation eucrim ID=0901101 money laundering and terrorist financ- Agency, and the Council of Europe (see ing in the Ukraine, to further develop also eucrim 1-2/2006, p. 22 and eucrim Russia: MOLI-RU 2 the country’s AML/CTF system – the 3-4/2006, p. 84). Several activities took place within the closing conference took place in Kyiv, By Thomas Wahl MOLI-RU 2 project in Russia (see also Ukraine on 29 and 30 April 2009. The eucrim ID=0901104 eucrim 1-2/2007, p. 45). Like Ukraine, event was also the final meeting of the the MOLI-RU 2 is a follow-up project Steering Group. On this occasion, the that aims at further developing Russia’s achievements and results of the project AML/CTF system (in view of both prac- were presented. For recent activities, re- Cybercrime tice and legislation). fer to the following project homepage. A series of seminars for the interre- For the project, see also eucrim 1-2/2006, Global Octopus Interface Conference gional offices of Rosfinmonitoring (the p. 22, eucrim 3-4/2006, p. 84, eucrim On the occasion of its 4th annual con- Russian Federal Financial Monitoring 1-2/2007, p. 45, and eucrim 1-2/2008, ference on cybercrime in Strasbourg, the Service), law enforcement bodies, and p. 56. CoE launched the second phase (March the private sector were organised. On eucrim ID=0901103 2009-June 2011) of its Project on Cyber- 2 and 3 April 2009, for instance, the crime to help countries worldwide to im- MOLI-RU2 project team held a seminar Moldova: MOLICO plement the Cybercrime Convention and for the Rosfinmonitoring office in the The MOLICO-Project against corrup- to adopt stricter standards on the protec- Ural Federal District. The seminar fo- tion, money laundering, and the financ- tion of children and personal data. cused on countering corruption as well ing of terrorism in Moldova was also Besides Microsoft and the Romanian as combating the laundering of corrup- closed. Like the projects in Ukraine and Government, McAfee also announced tion proceeds. Russia, this project was the follow-up to that it will support the project financially An International Conference on fight- a previous project that had been com- in order to contribute to the development ing crime in the Siberian region was pleted in 2005. The aims of the project of police and judge training programmes. held on 19 and 20 February 2009 in were (1) to ensure the implementation of The first programmes should be operable Krasnoyarsk. The conference focused Moldova’s anti-corruption strategy on in 2010. Some of the output expected in on the criminal situation in the region, the basis of annual action plans, and (2) the second phase is as follows: on legal, tactical, and procedural aspects to strengthen the anti-money launder-  Strengthening cybercrime policies of fighting crime and related issues. ing/counter-terrorist financing (AML/ and legislation in accordance with the Particular attention was paid to counter- CTF) system in Moldova in accordance Convention on Cybercrime;

eucrim 1–2 / 2009 | 33 NEWS – Council of Europe

 Strengthening the capacities of the so- materials, promoting self-regulation of Opinion was further elaborated between called 24/7 points of contact as well as on-line communities, and seeking to the CCJE and the CCPE at a joint con- the prosecutors and authorities for mutu- advance a positive counter-narrative to ference in Bordeaux, France, on 30 June al legal assistance within the framework extremist messages. Experts noted that, 2009. All members and observers of of international cooperation; while terrorist organisations launch cy- the CCJE have until 5 October 2009 to  Financial investigations to follow ber attacks against their enemies, at the submit comments on the draft. The draft money flows on the Internet; present time their ability to affect large- Opinion will be discussed at the ple-  Training of judges and prosecutors. scale disruption or destruction via cyber nary meeting of the CCJE in November The CoE continues to study the con- means appears to be limited. However, 2009. sequences of “cloud computing” and in- their ability to perpetrate cyber attacks eucrim ID=0901107 tends to ensure that its Convention for is likely to increase; hence, the interna- the Protection of Individuals with regard tional community must continue to de- CEPEJ: Plenary Meeting Discusses to Automatic Processing of Personal velop protective measures as well as the Evaluation of Judicial Systems with Data is in line with the technological capabilities and mechanisms to ensure EU Bodies progress that has taken place since its resilience in the face of a cyber attack. The European Commission for the Effi- adoption in 1981. The conference was It has been recommended that States ciency of Justice (CEPEJ) held its 13th attended by approximately 280 cyber- establish and develop a national Com- plenary meeting in Strasbourg from crime experts from 70 countries, includ- puter Security Incident Response Team 10 to 11 June 2009. During that meeting representatives of the private sector (CSIRT). The team could serve as a focal ing, the CEPEJ discussed, together with and international organisations. point for the exchange of information re- representatives of the various EU bod- It should be remarked that, on garding cyber incidents affecting critical ies, possible cooperation to evaluate 9 March 2009, just before the confer- information, infrastructure, and it could judicial systems. The cooperation is to ence, Germany became the 25th country coordinate incident response and mitiga- take place as part of the Memorandum to ratify the Convention. tion among affected stakeholders. of Understanding between the Council eucrim ID=0901105 eucrim ID=0901106 of Europe and the European Union (cf. eucrim 1-2/2007, pp. 41-42). As part of CoE and OAS Step Up Efforts to the cooperation with the European Un- Counter Terrorism and Strengthen ion, the meeting participants reiterated Cyber Security Procedural Criminal Law their full commitment to pursuing their On 16 and 17 April 2009, a conference cooperation with the Justice Forum of on terrorism and cyber security took the European Union. place in San Lorenzo de El Escorial CCJE/CCPE: Draft Opinion on the Furthermore, the CEPEJ adopted its (Spain). The conference focused on mis- Relationship between Judges and 2008 Activity Report and the revised use of the Internet by terrorist organisa- Prosecutors version of the scheme for evaluating tions and their supporters as well as the The Working Party of the Consultative judicial systems, which enables it to risks posed by them. The event was co- Council of European Judges (CCJE-GT) launch the new evaluation cycle. organised by the Organisation of Ameri- and the Consultative Council of Euro- By Thomas Wahl can States Inter-American Committee pean Prosecutors (CCPE) are currently eucrim ID=0901108 against Terrorism (OAS/CICTE) and working on a draft Opinion concerning the Council of Europe (CoE) within the “the relationship between judges and CEPEJ: Meeting of the Working Group framework of the Spanish Chairmanship prosecutors”. on Quality of Justice in the Council of Europe Committee of The opinion raises such issues as the At its 5th meeting, held from 18 to Ministers. missions of judges and prosecutors in 19 May 2009, the CEPEJ Working Discussions focused on the presence society, guarantees for the (internal and Group on Quality of Justice (CEPEJ-GT- of terrorist organisations in and their use external) independence of the judge and Qual) discussed several ongoing studies of the Internet for various purposes, in- the prosecutor, codes of ethics and deon- and projects. For example, participants cluding the dissemination of propaganda tology to be followed, the functions of the discussed the state of play of a study on related to racist ideology. To counteract judge and the prosecutor before/during/ quality systems in Europe. A first analy- these developments, experts proposed after the court hearing as well as defence sis has shown that States are experienc- a range of innovative solutions that go rights at all levels of the procedure. ing difficulties in specifying quality and beyond purely technical ones, such as The draft structure of the Opinion efficiency, and courts are rarely autono- deterring the production of extremist was agreed on in February 2009 and the mous administrative entities. Therefore,

34 | eucrim 1–2 / 2009 Procedural Criminal Law it is considered necessary to first define Ratifications and Signatures (Selection) the relations between courts and central Date of Council of Europe Treaty State administration in order to determine who ratification (r) the first responsible instance for quality or signature (s) is. Most of the states – with some ex- ceptions, such as Finland or Germany European Convention on Extradition Monaco 30 January 2009 (r+s) – set the quality of justice at the central (ETS No. 24) San Marino 18 March 2009 (r) administration’s level, but experts have European Convention on Mutual Assis San Marino 18 March 2009 (r) noticed that this stage is not necessarily tance in Criminal Matters (ETS No. 30) the most appropriate one to analyse and make recommendations to improve the Convention on the Transfer of Sentenced Honduras 9 March 2009 Persons (ETS No. 112) (accession) quality of justice. Further items of the agenda were, in- Convention on the Compensation of Slovakia 12 March 2009 (r) ter alia: Victims of Violent Crimes (ETS No. 116)  Presentation of a draft model of a Additional Protocol to the Convention UK 9 February 2009 (s) quantitative satisfaction survey designed on the Transfer of Sentenced Persons for the measurement of court users’ sat- (ETS No. 167). isfaction; Additional Protocol to the Convention for Montenegro 24 February 2009 (s)  Presentation of a preliminary ques- the Protection of Individuals with regard Ireland 5 May 2009 (r) tionnaire on the contractualisation of the to Automatic Processing of Personal Data, relations between judges and parties; regarding supervisory authorities and  Preliminary discussion of the work transborder data flows (ETS No. 181) on court organisation. This projects aims Second Additional Protocol to the Europe- Belgium 9 March 2009 (r) at bringing to light fundamental princi- an Convention on Mutual Assistance ples and procedures that are necessary to in Criminal Matters (ETS No. 182) reform court organisation. Convention on Cybercrime Germany 9 March 2009 (r) By Thomas Wahl (ETS No. 185) Serbia 14 April 2009 (r) eucrim ID=0901109 Moldova 12 May 2009 (r)

CEPEJ: Meeting of the Working Group Protocol No. 13 to the Convention for the Italy 3 March 2009 (r) on Evaluating Judicial Systems Protection of Human Rights and Funda- mental Freedoms, concerning the abolition The 12th meeting of the Working Group of the death penalty in all circumstances on evaluating judicial systems was held (ETS No. 187) in Strasbourg from 12 to 13 March 2009. The group decided on the topics of the Additional Protocol to the Convention on Serbia 14 April 2009 (r) Cybercrime, concerning the criminalisation next in-depth studies to be conducted as of acts of a racist and xenophobic nature per the 2008 Evaluation Report. They committed through computer systems include the single judge and panels of (ETS No. 189) judges, the role of lawyers in judicial Protocol amending the European Conven Serbia 14 April 2009 (r) proceedings, organisation of the court tion on the Suppression of Terrorism clerk office, court organisation in terms (ETS No. 190) of allocation of tasks and case catego- Additional Protocol to the Criminal Law Belgium 26 February 2009 (r) ries among the courts, and the internal Convention on Corruption (ETS No. 191) Russia 7 May 2009 (s) organisation of courts. In this context, Spain 27 May 2009 (s) experts of the Working Group recommended that CEPEJ’s future studies Protocol No. 14 to the Convention for the Germany 29 May 2009 (acceptation should inter alia focus on promoting the Protection of Human Rights and Funda- of the provisional applica- approach of “one-stop” service counters mental Freedoms, amending the control tion), 1 June 2009 (date of system of the Convention (CETS No. 194). effect) in court entrances, where users could be Switzerland 12 May 2009 (accepta advised and informed about procedures tion), 1 June 2009 (effect) that concerned them. eucrim ID=0901110

eucrim 1–2 / 2009 | 35 NEWS – Council of Europe

Date of Legislation Council of Europe Treaty State ratification (r) or signature (s) GRETA: New Monitoring Body for CoE’s Trafficking in Human Beings Protocol No. 14 to the Convention for the Luxembourg 9 June 2009 (acceptation), Convention Protection of Human Rights and Funda 1 July 2009 (effect) mental Freedoms, amending the control Netherlands 10 June 2009 (accepta The Group of Experts on Action against system of the Convention (CETS No. 194). tion), 1 July (effect) Trafficking in Human Beings (GRETA) UK 30 June 2009 (accepta held its first meeting at the Council of tion), 1 July 2009 (effect) Europe in Strasbourg from 24 to 27 Feb- 29 July 2009 (accepta Belgium ruary 2009. This new monitoring body tion), 1 August 2009 will control the implementation of the (effect) Estonia 30 July 2009 (accepta Convention on Action against Traffick- tion), 1 August 2009 ing in Human Beings (hereinafter refer- (effect) red to as “The Convention”). In his open- Convention on the Prevention of Terrorism Cyprus 23 January 2009 (r) ing speech, the Secretary General of the (CETS No. 196) Latvia 2 February 2009 (r) CoE qualified the Council of Europe Spain 27 February 2009 (r) Convention on Action against Trafficking Serbia 14 April 2009 (r) in Human Beings as the most important Estonia 15 May 2009 (r) human rights treaty of the past 10 years. GRETA elected Ms Hanne Sophie Convention on Action against Trafficking Turkey 19 March 2009 (s) in Human Beings (CETS No. 197) Spain 2 April 2009 (r) Greve as President for a first term of of- Luxembourg 9 April 2009 (r) fice of two years. GRETA also adopted Serbia 14 April 2009 (r) its internal rules of procedure. Belgium 27 April 2009 (r) GRETA urged the European Com- FYROM 27 May 2009 (r) munity and the Council of Europe member states, which had not already done Convention on Laundering, Search, Seizure Russia 26 January 2009 (s) so, to sign and ratify the Convention. In and Confiscation of the Proceeds from Spain 20 February 2009 (s) addition, GRETA called for non-mem- Crime and on the Financing of Terrorism Cyprus 27 March 2009 (r) (CETS No. 198) ber states to accede to the Convention. European Community 2 April 2009 (s) GRETA also welcomed the setting-up Serbia 14 April 2009 (r) of the Trafficking Information Manage- FYROM 27 May 2009 (r) ment System (TIMS) which it considers would constitute invaluable support for Convention on the Protection of Children Greece 10 March 2009 (r) its work. against Sexual Exploitation and Sexual Spain 12 March 2009 (s) GRETA will regularly publish reports Abuse (CETS No. 201) Georgia 12 March 2009 (s) evaluating measures taken by states to Albania 14 April 2009 (r) Montenegro 18 June 2009 (s) implement the convention. The evaluation will be carried out by rounds simi- Protocol No. 14bis to the Convention for France, lar to GRECO and MONEYVAL. The the Protection of Human Rights and Georgia, evaluation team will be composed of in- Fundamental Freedoms (CETS No. 204). Spain All 27 May 2009 (s) Slovenia 27 May 2009 (s), dependent and highly qualified experts 7 July 2009 (r) in human rights and the fight against hu- Denmark, man trafficking. Norway Both 27 May 2009 (s + r) At its second meeting from 16 to Luxembourg 9 June 2009 (s) 19 June 2009, GRETA prepared the first Ireland 17 June 2009 (s +r) monitoring round of the Convention. As San Marino 19 June 2009 (s) a result, GRETA adopted its rules of pro- Monaco 1 July 2009 (s + r) cedure for evaluating implementation of Austria 7 July 2009 (s) the Convention by the parties and also Iceland 7 July 2009 (s + r) started preparing a questionnaire for the first evaluation. eucrim ID=0901112 eucrim ID=0901111

36 | eucrim 1–2 / 2009 Rules on the Application of ne bis in idem in the EU Is Further Legislative Action Required?

Dr. Katalin Ligeti

Within a relatively short period of time, the European Court the same time, the principle of ne bis in idem is also strongly of Justice (ECJ) has had the opportunity to address the issue connected to the legitimacy of the legal system, especially to of a transnational ne bis in idem principle in several cases in legal certainty and equity.4 Based on the idea of “aequitas”, the EU, and a legislative proposal was also put forward on the individual, once having been subjected to the distress of this matter.1 The increased attention paid to the transnational criminal proceedings, should remain secure from further em- application of the ne bis in idem principle shows that the judi- barrassment. From the point of view of legal certainty, all Eu- cial authorities of the EU Member States are facing a growing ropean States recognise that once ordinary appellate remedies number of cases that simultaneously involve several jurisdic- have been exhausted, or the relevant time limit for appeal has tions. expired, a conviction or acquittal is to be regarded as irrevocable, and it acquires the quality of res judicata.5 The present article focuses on the ne bis in idem principle in the context of an Area of Freedom, Security and Justice.2 Tak- Besides the above-cited rationale embedded in the rule of law, ing as a starting point the rationale and content of ne bis in the ne bis in idem principle may also be based on economic idem as a principle of national criminal law, the rules for its considerations in that it prevents costly multiple prosecutions transnational application shall be examined. The current le- and creates incentives for efficient coordination between pros- gal framework for the transnational application of the ne bis ecutors.6 This rationale is also important at the transnational in idem principle in the EU is provided by Art. 54–58 of the level, where efficient coordination between different jurisdic- Convention on the Implementation of the Schengen Agree- tions must be secured. ment (CISA). The latter subjects the application of the ne bis in idem principle to certain exemptions and thereby curtails its The ne bis in idem principle contains two different prohibi- fundamental right character. tions: (1) the prohibition of double punishment, i.e., that no one should be punished twice for the same act; and (2) the With a view to the present stage of integration, it is argued in prohibition of double prosecution, i.e., that no one should have the following that the wording of Art. 54–58 of the CISA and to face more than one prosecution for the same act.7 the respective case law of the ECJ provide incomplete rules for the application of ne bis in idem in the interstate relations of Based on the content described above, the ne bis in idem prin- the EU Member States. In order to properly balance the values ciple, as elaborated in the national legal systems, has three of legal certainty and material justice at the transnational level, major characteristics. Firstly, it is a principle that is limited to further legislative action is required. criminal justice.8 This means that the ne bis in idem principle does not, in general, exclude administrative or civil proceedings and sanctioning for an act which has already been dealt I. The Rationale and Content of the ne bis in idem Principle with in the criminal justice system. Similarly, previous disci- in the National Legal Systems plinary, civil, or administrative convictions usually do not bar criminal proceedings.9 The rationale for the ne bis in idem principle is complex. It comprises aspects relating to the rule of law as well as eco- Secondly, the ne bis in idem principle applies only when the nomic factors. Emanating from the rule of law in criminal law, criminal decision has become final and irrevocable, such that ne bis in idem is mainly regarded as a means of protecting no appellate remedy is available.10 Thus, provisional measures the individual against possible abuses by the State of its ius in criminal proceedings or in the pre-trial stage do not have a puniendi.3 The State should not be allowed to make repeated ne bis in idem effect. It is, therefore, generally accepted that attempts to convict an individual for an alleged offence. At final judgements on the merits of the charge (conviction or

eucrim 1–2 / 2009 | 37 Development of European Criminal Procedure Law acquittal) result in ne bis in idem. Meanwhile, it has also be- 1. General rules of interpretation come widely recognised that out-of-court settlements common in the criminal procedural law of most national legal systems The preliminary rulings delivered by the ECJ on the interpre- have the same status as final judgements and also have ane bis tation of Art. 54 of the CISA crystallise mutual trust and safe- in idem effect.11 guarding the right to freedom of movement as general rules for the transnational application of the ne bis in idem principle.13 Thirdly, the ne bis in idem principle applies in most national legal systems in respect of the same natural person. In those In this sense, the ECJ has repeatedly emphasised that Art. legal systems that recognise the criminal sanctioning of legal 54–58 of the CISA are based on Art. 34 and 31 of the Treaty entities, it is therefore usually accepted that both the individual on European Union (TEU) and thereby imply that Member and the legal entity may be prosecuted and sanctioned for the States have mutual trust in each other’s criminal justice sys- same act. tems.14 Mutual trust means that each Member State “recognis- es the criminal law in force in other Member States even when the outcome would be different if its own national law were II. The Transnational ne bis in idem Principle applied.”15 The concept of mutual trust was thus employed in the European Union by the ECJ to underpin that “the application of Art. 54 of the CISA [is not] made conditional upon harmonisation, or at least As European integration advanced and the creation of an Area approximation, of the criminal laws of the Member States.”16 of Freedom, Security and Justice became more and more tan- Separating the application of the ne bis in idem principle from gible, the concurrence among national criminal jurisdictions the national criminal laws of the Member States opened the of the Member States turned into a daily problem of law en- possibility for the ECJ to set autonomous standards for its forcement in the European Union. In order to avoid double transnational application. prosecutions, Art. 54 of the CISA contained an explicit rule on the transnational application of ne bis in idem. The argumentation of the ECJ makes clear that the Court considers the ne bis in idem principle enshrined in Art. 54 of the According to Art. 54 of the CISA: “A person whose trial has CISA to be based on the concept of mutual recognition. In the been finally disposed of in one Contracting Party may not be widest sense, mutual recognition means that Member States prosecuted in another Contracting Party for the same acts pro- recognise the criminal decisions of other Member States with- vided that, if a penalty has been imposed, it has been enforced, out any further formalities, thus giving them the status of a is actually in the process of being enforced or can no longer be domestic decision. Though this viewpoint has been hotly de- enforced under the laws of the sentencing Contracting Party.” bated among academics,17 the ECJ’s case law on the ne bis in idem principle leaves no doubt that the Court utilises the It follows from the wording of Art. 54 that it does not limit concept of mutual recognition in connection with the ne bis in the ne bis in idem principle to the prohibition of double pun- idem principle as a means of identifying rules for the coexist- ishment, but also forbids double prosecution. Art. 55 of the ence of multiple criminal jurisdictions in the European Union. CISA, however, waters down this general prohibition by al- Interpreting the ne bis in idem principle enshrined in Art. 54 lowing for three categories of exemptions from the application of the CISA on the basis of the mutual recognition principle of Art. 54: has far-reaching consequences for the interpretation of the elements of the ne bis in idem principle, as will be shown below  The territoriality exception, according to which acts are in Sections 2–4. exempted that took place in whole or in part in one Member State’s own territory; Before looking into the elements of the ne bis in idem princi-  The national security exception, according to which acts ple, attention should be drawn to the second general guideline that constitute an offence against national security or other of its application as developed by the ECJ. The ECJ already equally essential interests of a Member State are exempted; emphasised in its first decision on Art. 54 of the CISA that  The national official exception, according to which acts that there is an intrinsic link between Art. 54 of the CISA and the have been committed by a Member State’s own officials in free movement of persons:18 the “right to freedom of move- violation of the duties of their office, are exempted.12 ment is effectively guaranteed only if the perpetrator of an act knows that, once he has been found guilty and served his sen- Even in cases where a Member States resorts to one of these tence, or, where applicable, been acquitted by a final judgment three exemptions, it must nevertheless apply the principle of in a Member State, he may travel within the Schengen terri- deduction according to Art. 56 of the CISA. tory without fear of prosecution in another Member State on

38 | eucrim 1–2 / 2009 Rules on the Application of ne bis in idem the basis that the legal system of that Member State treats the criminal laws of the Member States.28 Such autonomous inter- act concerned as a separate offence.” The fundamental right to pretation was enabled only by a factual approach. free movement could be undermined if individuals had to face several prosecutions for the same criminal behaviour within The ECJ reaffirmed and further outlined its approach in Van the European Union. The Court held that the objective of Art. Straaten,29 where it pronounced that a lack of complete iden- 54 of the CISA is “to ensure that no one is prosecuted on the tity of the material facts does not prevent the application of same facts in several Member States on account of his having the ne bis in idem principle.30 For example, the place of com- exercised his right to freedom of movement.”19 mission may change (as, e.g., in Van Esbroeck) or the commission may stretch over a longer period of time (as, e.g., in This “pro-free movement” approach, was however, stream- Kraaijenbrink). lined and further elaborated by the ECJ in Miraglia. The ECJ established that the objectives of the TEU must be properly To help the task of the national judge, the ECJ put the Van taken into account when interpreting the ne bis in idem prin- Esbroeck standard in a concrete context with regard to the il- ciple. Consequently, in an Area of Freedom, Security and Jus- legal smuggling of narcotic substances, contraband tobacco, tice, “the free movement of persons is assured in conjunction and other goods. The ECJ explicitly stated “that punishable with appropriate measures with respect to […] prevention and acts consisting of exporting and importing the same illegal combating of crime.”20 The right to freedom of movement, goods and which are prosecuted in different CISA Contracting therefore, cannot run counter to the objective of “providing States constitute conduct which may be covered by the notion citizens with a high level of safety” as proclaimed in Art. 29 of of ‘same acts’ within the meaning of Article 54 of the CISA.”31 the TEU. The prevention and combating of crime may, under The ECJ has, however, always underlined that the definitive certain conditions, restrain the right to freedom of movement assessment as to whether the concrete circumstances consti- and thus the ne bis in idem principle. The interpretation of the ne tute the same act for the purposes of Art. 54 of the CISA is the bis in idem principle has to balance these conflicting interests. task of the competent national courts.

2. The meaning of idem for the purposes 3. The meaning of “finally disposed of” for the purposes of Art. 54 of the CISA of Art. 54 of the CISA

Although all official language versions of the CISA refer to the The wording of Art. 54 of the CISA concerning the types of “same acts”,21 the interpretation of this phrase triggered quite decision that should bar further prosecution is not homoge- some academic debate even before the ECJ had the opportu- nous in the various language versions: in German rechtskräftig nity to address this question. The central debate on idem was abgeurteilt, in Dutch onherroepelijk vonnis, in French défini- whether “same acts” should be understood in a legal sense, as tivement jugée. There has been a wide consensus that convic- acts constituting the same offence in two or more systems,22 or tion or acquittal pronounced by a criminal court falls within in a (broader) factual sense as “same facts”,23 or as a combina- the scope of Art. 54 of the CISA. It was, however, unclear, tion of these two as the same protected legal interest.24 whether Art. 54 of the CISA requires res iudicata in a material sense, i.e., that the decision of the first prosecuting State Relying on the concept of mutual recognition and freedom of definitively bars further prosecution at the national level.32 In movement, the ECJ clarified in Van Esbroeck25 that the only addition, there have been differing opinions regarding whether relevant criterion for the purposes of Art. 54 of the CISA is that out-of-court settlements and procedural agreements also fall there should be an “identity of the material facts, understood within the scope of the ne bis in idem principle.33 in the sense of the existence of a set of concrete circumstances which are inextricably linked together in time, in space and The first preliminary reference to the types of decisions having by their subject matter.”26 The Court went on to emphasise a ne bis in idem effect concerned out-of-court settlements.34 that “[b]ecause there is no harmonisation of national criminal Here, the ECJ held that Art. 54 of the CISA neither requires laws, a criterion based on the legal classification of the acts or that a court is involved in the procedure nor that the decision on the protected legal interest might create as many barriers to in which the procedure culminates takes the form of a judicial freedom of movement within the Schengen territory as there decision.35 According to the Court, a “decision of an authority are penal systems in the Contracting States.”27 Viewed from required to play a part in the administration of criminal justice the perspective of mutual recognition and free movement, the in the national legal system concerned”36 is sufficient to trig- ECJ strived to develop rules of an autonomous interpretation ger a ne bis in idem effect if the accused undertakes “to per- of Art. 54 of the CISA that does not depend on the national form certain obligations prescribed by the Public Prosecutor,

eucrim 1–2 / 2009 | 39 Development of European Criminal Procedure Law

[which] penalises the unlawful conduct”37 allegedly commit- cause prosecution of the offence is time-barred.48 To arrive at ted by him/her. Thus, the ne bis in idem principle laid down in this conclusion, the ECJ recalled again the aim of Art. 54 of Art. 54 of the CISA “also applies to procedures whereby […] the CISA, namely to ensure the exercise of the right of free the Public Prosecutor of a Member State discontinues criminal movement,49 which would be undermined by a second prose- proceedings brought in that State, without the involvement of cution. In Gasparini, the ECJ again adopted a “pro-free move- a court, once the accused has fulfilled certain obligations and, ment and mutual trust reasoning” and decided not to follow in particular, has paid a certain sum of money determined by the suggestions of the Advocate General. The latter argued, the Public Prosecutor.”38 by referring to Miraglia, that since an acquittal due to lapse of time implies that there had been no assessment whatsoev- The very broad interpretation given in Gözütök and Brügge to er of the unlawful conduct of the defendant, such an acquit- the phrase “finally disposed of” as part of the ne bis in idem tal should not bar a second prosecution in another Member principle suggested that this principle may also apply to situ- State.50 Contrary to this, the ECJ clarified inGasparini that the ations where national law bars further prosecution based on assessment of the merits of the case is not a general condition a purely formalistic ground. This was at issue in Miraglia39 for the transnational application of the ne bis in idem principle. where the ECJ explicitly held that Art. 54 of the CISA does not It reconfirmed that the interpretation of Art. 54 of the CISA apply “to a decision of the judicial authorities of one Member may by no means depend on the national criminal laws of the State declaring a case to be closed, after the Public Prosecutor Member States. has decided not to pursue the prosecution on the sole ground that criminal proceedings have been started in another Member Finally, the ECJ clarified in its recent ruling inTuransky that “a State against the same defendant and for the same acts, without decision which does not, under the law of the first [prosecuting any determination whatsoever as to the merits of the case.” State] definitively bar further prosecution at national level cannot, in principle, constitute a procedural obstacle to the open- In its examination of the case law of the ECJ, Wassmer rightly ing or continuation of criminal proceedings in respect of the concluded that, in Miraglia, the ECJ did not made the examina- same acts against that person in another Contracting State.”51 tion of the merits of the case an absolute condition for the appli- In line with its decision in Gözütök and Brügge, the Court has cation of Art. 54 of the CISA.40 It rather aimed at streamlining accepted in Turansky that a final decision can come from a po- its ruling in Gözütök and Brügge so as to exclude from the scope lice authority that examined the case. However, in Turansky, of the ne bis in idem provision decisions that “clearly run coun- the decision of the Slovak police authority did not preclude ter to the very purpose of the provisions of Title VI of the Treaty under Slovak law the institution of new criminal proceedings on European Union […] namely: to maintain and develop the in respect of the same acts in the territory of the Slovak Repub- Union as an Area of Freedom, Security and Justice.”41 lic. Consequently, the decision of the Slovak police authority did not preclude proceedings in another Member State. The The fact that situations – in which national law bars further Court thereby underlined the importance of res judicata in a prosecution based on a purely formalistic ground – may be material sense for the application of Art. 54 of the CISA. covered by Art. 54 of the CISA as long as they do run counter to the objectives of the TEU is confirmed by two further rulings in Van Straaten42 and Gasparini.43 In Van Straaten, the 4. The enforcement condition in Art. 54 of the CISA Court held that the ne bis in idem principle applies in respect of a decision of the judicial authorities of the Member States According to Art. 54 of the CISA, the prohibition on crimi- by which the accused is acquitted for lack of evidence.44 The nal prosecutions for the same acts applies only if “it has been ECJ stipulated that “in the case of a final acquittal for lack enforced, is actually in the process of being enforced or can of evidence, the bringing of criminal proceedings in anoth- no longer be enforced under the laws of the sentencing Con- er Contracting State for the same acts would undermine the tracting Party.” The reason for the enforcement condition in principles of legal certainty and of the protection of legitimate Art. 54 of the CISA is to avoid having those who successfully expectations”45 and would jeopardise the exercise of the right fled from justice to another country invoke the ne bis in idem to freedom of movement.46 Moreover, the ECJ mentioned that – principle and thereby impede punishment. taking into account its ruling in Miraglia – an acquittal for lack of evidence presupposes the assessment of the merits of the case.47 In Kretzinger, the referring court asked whether a suspended custodial sentence may be regarded as a sentence that is en- Similarly, the ECJ ruled in Gasparini that the ne bis in idem forced, or is actually in the process of being enforced.52 The principle also applies in respect of a court’s decision of a Court confirmed that since “a suspended custodial sentence Member State by which the accused is finally acquitted be- penalises the unlawful conduct of a convicted person, it con-

40 | eucrim 1–2 / 2009 Rules on the Application of ne bis in idem stitutes a penalty within the meaning of Art. 54 of the CISA. procedural criminal laws of the Member States, such as, e.g., That penalty must be regarded as ‘actually in the process of age of criminal responsibility, lapse of time, pardon, or lack being enforced’ as soon as the sentence has become enforce- of evidence. The ECJ does not distinguish between substan- able and during the probation period.”53 The ECJ also noted tive and procedural grounds of termination; if one Member that the very wording of Art. 54 of the CISA allows for taking State finally terminates the prosecution of the defendant, such into account only sanctions applied after the trial of the person a decision seems to trigger the application of ne bis in idem in in question has been finally disposed of. Therefore, procedural other Member States, except for cases in which it would run coercive measures preceding the final judgment, such as, e.g., counter to the objectives of the TEU. police custody and detention on remand pending trial, fall outside the scope of the ne bis in idem principle.54 The Commission Staff Working Document drawn up in 2005 raised the dilemma that the balance struck by the ECJ in inter- Especially with a view to the above-mentioned reason for the preting the ne bis in idem principle might lead to undesirable enforcement condition – namely that those who successfully consequences in cases where the discharging authority has ig- fled from justice to another country should not be in a position nored relevant interests of another Member State.57 Therefore, to invoke the ne bis in idem principle –, the question arose as the Commission is seeking ways of protecting individuals to whether Art. 54 of the CISA should be understood in such from multiple prosecutions without their having to resort to a way that the penalty imposed by the sentencing State must ne bis in idem.58 Indeed, one major weakness of the principle have been capable of being enforced at least on the date it was from the viewpoint of the defendant is that it does not, as cur- imposed. This was the issue of the reference for a preliminary rently framed, actually prevent multiple prosecutions. In order ruling in Bourquain, where the ECJ decided “that the ne bis in to strengthen the fundamental rights character of the ne bis in idem principle, enshrined in Article 54 of the CISA, is appli- idem principle, the Commission suggests removing the excep- cable to criminal proceedings instituted in a Contracting State tions and conditions contained in Art. 54–55 of the CISA. against an accused whose trial for the same acts as those for which he faces prosecution was finally disposed of in another Even though one may agree with the Commission that the op- Contracting State, even though, under the law of the State in tional derogations based on the territoriality, national security, which he was convicted, the sentence which was imposed on and national official exemptions contained in Art. 55 of the him could never […] have been directly enforced.”55 In this CISA59 unjustifiably prioritise the interests of national sover- way, the Court once again underlined that the EU–wide ap- eignty and criminal prosecution over the fundamental rights of plication of the ne bis in idem principle cannot depend on the the person prosecuted and thereby run contrary to the objec- national criminal laws of the Member States. tive of an “area of justice” as proclaimed in Art. 29 of the TEU, lifting the derogations will not solve the remaining problems of the ne bis in idem principle. It is not only the details of the III. Is Further Legislative Action on ne bis in idem concrete application of the ne bis in idem principle that are Necessary? still unclear, but also the more fundamental issue concerning the rationale of ne bis in idem at the transnational level. As The overall jurisprudence of the European Court of Justice on has been explained earlier, the ne bis in idem principle was the interpretation of Art. 54 of the CISA has developed a set founded in the national legal systems upon the twofold basis of rules that is not dependent on the national criminal laws of securing due process rights for the individual and securing of the Member States. By rejecting categories of the national the finality of judgments in order to legitimise the legal order. legal systems, the Court has given preference to the exercise of The jurisprudence of the ECJ has not yet struck the balance the right to free movement, which may not be hindered by the between the contending values of legal certainty and material national criminal laws of the Member States.56 It is new in the justice at the transnational level. In light of the case law on Court’s approach, however, that the ne bis in idem principle in idem, it is not evident whether all situations in which nation- the interstate relations of the Member States must be related al law bars further prosecution based on a purely formalistic to mutual recognition. The Court reaffirms thereby that Mem- ground are covered by Art. 54 of the CISA as long as they are ber States are obliged to recognise decisions of other Member in line with the objectives of the TEU. Or would the ECJ only States even if there are substantial differences between their accept such decisions provided that “the accused has fulfilled legal systems. According to the Court, such recognition should certain obligations and, in particular, has paid a certain sum of prevail even if it was adopted on purely formalistic grounds as money determined by the Public Prosecutor?” In other words, long as recognition of a criminal decision of another Member it is unclear which weight the Court attributes to res judicata State does not run counter to the objectives of the Treaty. Such and legal certainty. In this respect, the Turansky judgment still formalistic grounds may derive both from the substantive and leaves open whether the final decision of an investigating body

eucrim 1–2 / 2009 | 41 Development of European Criminal Procedure Law other than the Public Prosecutor – such as, e.g., the police – referred to it. Therefore, the suggestion of the Commission could result in ne bis in idem, provided that such a decision to adopt more coherent and detailed rules on the conflicts of bars further prosecution at the national level. jurisdiction and the ne bis in idem principle is certainly well founded. The two legislative proposals60 brought forward so far have, however, ended in talk only. The very recent Presidency IV. Conclusion proposal for a framework decision on prevention and settlement of conflicts of jurisdiction in criminal proceedings61 does It clearly emerges from the analysis of the jurisprudence that not contain stringent criteria for selecting jurisdiction either. the ECJ faces great difficulties when trying to define rules for Rather, it is limited to the strengthening of cooperation and the transnational application of legal principles. This is partly coordination between the Member States. The further speci- a consequence of the nature of the preliminary ruling proce- fication of the transnational ne bis in idem principle therefore dure where the ECJ may only decide on the very legal problem remains the job of the ECJ.

14 C-187/01 and C-385/01 Gözütök and Brügge [2003] ECR I-1345, para. 32. Re- called in C-436/04 Van Esbroek [2006] ECR I-2333, para. 29; C-467/04 Gasparini Dr. Katalin Ligeti and Others [2006] ECR I-9199, para. 29; C-297/07 Bourquain, Judgement of 11 Associate Professor of Criminal Law, Faculty of Law, Eötvös December 2008, para. 37. 15 C-187/01 and C-385/01 Gözütök and Brügge [2003] ECR I-1345, para. 33. Loránd University (Budapest); National Contact Point for Recalled in C-436/04 Van Esbroek [2006] ECR I-2333, para. 30; C-150/05 Van Hungary in the European Criminal Law Academic Network Straaten [2006] ECR I-9327, para. 43; C-467/04 Gasparini and Others [2006] ECR (ECLAN); Vice-Secretary General of the International I-9199, para. 30; C-297/07 Bourquain, Judgement of 11 December 2008, para. 37. Association of Penal Law (AIDP). 16 C-187/01 and C-385/01 Gözütök and Brügge [2003] ECR I-1345, para. 32. Re- called in C-436/04 Van Esbroek [2006] ECR I-2333, para. 29; C-467/04 Gasparini and Others [2006] ECR I-9199, para. 29; C-297/07 Bourquain, Judgement of 11 December 2008, para. 36. 17 There is a debate on whether one needs to first harmonise substantive and 1 Initiative of the Hellenic Republic with a view to adopting a Council Framework procedural criminal law in order to be able to mutually recognise criminal decisions Decision concerning the application of the “ne bis in idem” principle. O.J. C 100 of made by foreign judicial authorities. S. Peers, Mutual recognition and criminal law 26 April 2003, p. 24. in the European Union: Has the Council got it wrong? CMLR 2004/41, pp. 5-36. 2 For the application of the ne bis in idem principle in the EC internal market, see 18 C-187/01 and C-385/01 Gözütök and Brügge [2003] ECR I-1345, para. 38. T. Liebau, „Ne bis in idem“ in Europa, Berlin Vienna Zurich 2005. Recalled in C-469/03 Miraglia [2005] ECR I-2009, para. 32; C-436/04 Van 3 The Law Commission, Double Jeopardy and Prosecution Appeals, Report, Law Esbroek [2006] ECR I-2333, para. 34; C-150/05 Van Straaten [2006] ECR I-9327, Com No. 267, pp. 37-38. Available at www.lawcom.gov.uk. paras. 46., 57; C-467/04 Gasparini and Others [2006] ECR I-9199, para. 27; 4 F.C. Schröder, Die Rechtsnatur des Grundsatzes „ne bis in idem“. JuS 1997, C-491/07 Turansky, Judgement of 22 December 2008, para. 41. p. 227. 19 C-187/01 and C-385/01 Gözütök and Brügge [2003] ECR I-1345, para. 38. 5 H.-H. Kühne, Anmerkung zum EuGH Urteil v. 11.2.2003. JZ 2003, p. 306. The 20 C-469/03 Miraglia [2005] ECR I-2009, paragraph 34. finality of criminal proceedings may be outweighed only exceptionally and usually in 21 In Dutch “kann terzake niet meer worden vervolgd wegens dezelfde feiten”; favour of the affected individual. Some national legal systems, however, permit the in French “ne peut, pour les mêmes faits, être poursuivie” and in German “wegen extraordinary reopening of criminal cases even to the detriment of the sentenced derselben Tat nicht verfolgt werden”. person, e.g., Hungary (B. Gellér/N. Kis/P. Polt, Hungarian Report. RIDP 2002/3-4, 22 Similarly, e.g., Wyngaert and Stessens suggest that “Without expressing pp. 995-996.) and Finland (R. Lahti, Finnish national report. RIDP 2002/3-4, an opinion as to the exact meaning of Art. 54 of the Schengen Convention, any p. 906). general international non bis in idem provision should, in principle, bar only new 6 W.P.J. Wils, The principle of ne bis in idem in EC antitrust enforcement: a legal prosecutions for the same offence, not for the same facts.” C. Van den Wyngaert/ and economic analysis. World Competition 2003/2, p. 136. G. Stessens, The International Non Bis In Idem Principle: Resolving Some of the 7 H. van der Wilt, The European Arrest Warrant and the Principle Ne Bis In Idem. Unanswered Questions, ICLQ 1999, p. 791. In: R. Blexton (ed.), Handbook on the European Arrest Warrant. The Hague 2005, 23 A similar approach was adopted in the Freiburg Proposal, according to which p. 99. idem is defined by the objective criteria of the human behaviour at the same place 8 J.L. de la Cuesta, General Report on Concurrent National and International and at the same time. Freiburg Proposal on Concurrent Jurisdictions and the Prohi- Criminal Jurisdiction and the Principle ne bis in idem. RIDP 2002/3-4, p. 712. bition of Multiple Prosecutions in the European Union. MPI Freiburg 2003, p. 23. 9 The autonomous interpretation of a criminal charge by the European Court of 24 K. Ambos, Internationales Strafrecht. Munich 2006, p. 437; K. Ligeti, Strafrecht Human Rights has induced some national legal orders to oblige the prosecuting und strafrechtliche Zusammenarbeit in der Europäischen Union. Berlin 2005, authorities to choose between criminal and administrative proceedings in cases pp. 107-108. where the same act can be sanctioned both ways. See A. Kilp/H. van der Wilt, 25 C-436/04 Van Esbroek [2006] ECR I-2333, paras. 14-17. Dutch national report. RIDP 2002/3-4, p. 1109. 26 C-436/04 Van Esbroek [2006] ECR I-2333, para. 38. Recalled in C-150/05 Van 10 In cases involving an extraordinary reopening of the prosecution, ne bis in idem Straaten [2006] ECR I-9327, para. 48; C-467/04 Gasparini and Others [2006] ECR does not block the opening of a new prosecution, but it usually impedes double I-9199, para. 54; C-367/05 Kraaijenbrink, Judgement of 18 July 2007, para. 26. punishment. The principle of deduction obliges the court to deduct from the sanc- 27 C-436/04 Van Esbroek [2006] ECR I-2333, para. 35. Recalled in C-150/05 Van tion the punishment imposed in the first decision. Straaten [2006] ECR I-9327, para. 48; C-288/05 Kretzinger, [2007] ECR I-6441, 11 H.-H. Kühne, op. cit. (note 5). para. 29. The Court thereby chose to interpret ne bis in idem more broadly than it 12 Of the EU Member States, AT, DE, DK, EL, FI, SE, and UK have made use of had previously done in the area of EC law, and it held that ‘unity of the legal interest the territoriality exemption and four of them (AT, DK, EL, FI) also of the national protected’ is not required for the application of Art. 54 of the CISA. security exemption. See Commission Staff Working Document SEC (2005) 1767, p. 47. 28 In support of an autonomous interpretation, the ECJ also underlined that the 13 M. Wassmer, The principle of ne bis in idem. RIDP 2006/1-2, p. 123. For the wording of Art. 54 of the CISA differs from that in other international instruments judgments, cited in the following, and relevant developments regarding the ne bis in which enshrine the ne bis in idem principle. C-436/04 Van Esbroek [2006] ECR idem principle, see also the news section of eucrim (1-2/2006, pp.16-17; 3-4/2006, I-2333, para. 28; C-150/05 Van Straaten [2006] ECR I-9327, para. 42. pp. 64-65; 1-2/2007, pp. 33-34, 3-4/2007, p. 104; 1-2/2008, pp. 31-32). 29 C-150/05 Van Straaten [2006] ECR I-9327, paras. 19-23.

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30 The ECJ contested that “[i]n case of offences relating to narcotic drugs, the ECR I-9327, para. 60. quantities of the drug that are at issue in the two Contracting States concerned or 48 C-467/04 Gasparini and Others [2006] ECR I-9199, para. 33. the persons alleged to have been party to the act in the two States are not required 49 C-467/04 Gasparini and Others [2006] ECR I-9199, para. 27. to be identical. It is […] possible that a situation in which such identity is lacking 50 The Advocate General in Gasparini argued that “a distinction can and should involves a set of facts which, by their very nature, are inextricably linked.” C-150/05 be drawn between trusting other Member States’ criminal proceedings in general Van Straaten [2006] ECR I-9327, paras. 50-51. (including such matters as fair trial guarantees, the substantive delineation of of- 31 C-288/05 Kretzinger, [2007] ECR I-6441, para. 35 contains a summary of the fences and rules on production and admissibility of evidence), on the one hand, and case law of the Court on the meaning of “same act” for the purposes of Art. 54 of trusting a decision that no substantive assessment of the offence can take place at the CISA. all because the prosecution is time-barred, on the other hand. The first is a proper 32 H. Radtke/D. Busch, Transnationaler Strafklageverbrauch in der Europäischen expression of respect, in a non-harmonised world, for the quality and validity of Union, NStZ 2003, p. 284. other sovereign States’ criminal law. The second is tantamount to de facto harmo- 33 For different opinions, see B. Hecker, Das Prinzip „ne bis in idem“ im Schenge- nisation around the lowest common denominator.” Opinion of the Advocate General ner Rechtsraum, StV 2001, p. 309; K. Ambos, op. cit. (note 24), p. 429. of 15 June 2006, Case C-467/04, para. 109. 34 C-187/01 and C-385/01 Gözütök and Brügge [2003] ECR I-1345, paras. 9-21. 51 C-491/07 Turansky, Judgement of 22 December 2008, para. 36. 35 C-187/01 and C-385/01 Gözütök and Brügge [2003] ECR I-1345, para. 31. 52 C-288/05 Kretzinger, [2007] ECR I-6441, para. 38. 36 C-187/01 and C-385/01 Gözütök and Brügge [2003] ECR I-1345, para. 28. 53 C-288/05 Kretzinger, [2007] ECR I-6441, para. 42. 37 C-187/01 and C-385/01 Gözütök and Brügge [2003] ECR I-1345, para. 29. 54 C-288/05 Kretzinger, [2007] ECR I-6441, para. 49. 38 C-187/01 and C-385/01 Gözütök and Brügge [2003] ECR I-1345, para. 48. 55 C-297/07 Bourquain, Judgement of 11 December 2008, para. 52. 39 C-469/03 Miraglia [2005] ECR I-2009, paras. 13-23. 56 This “free movement” approach is in line with the previous case law of the 40 M. Wassmer, op. cit., p. 126. Court, according to which “[a]lthough in principle criminal legislation is a matter 41 C-469/03 Miraglia [2005] ECR I-2009, para. 34. for which the Member States are responsible, the Court has consistently held 42 C-150/05 Van Straaten [2006] ECR I-9327. that Community law sets certain limits to their power, and such legislation may 43 C-467/04 Gasparini and Others [2006] ECR I-9199. not restrict the fundamental freedoms guaranteed by Community law.” C-348/96 44 C-150/05 Van Straaten [2006] ECR I-9327, para. 61. Donatella Calfa [1999] ECR-I 11, para. 17. 45 C-150/05 Van Straaten [2006] ECR I-9327, para. 59. 57 Commission Staff Working Document SEC (2005) 1767, p. 55. 46 C-150/05 Van Straaten [2006] ECR I-9327, para. 58. Contrary to the national 58 In the Commission’s view, the only way to more efficiently solve cases that have criminal laws of the Member States that, under certain circumstances, allow for links to more than one jurisdiction would be to regulate how and when Member extraordinary revision of res judicata in order to rectify judicial wrongdoing, such States are entitled to exercise their criminal jurisdiction. Green Paper on Conflicts an extraordinary remedy is not available in the interstate relations of the Member of Jurisdiction and the Principle of Ne bis in Idem in Criminal Proceedings, COM States. Therefore, if a Member State terminates prosecution of the defendant due (2005) 696 final = eucrim 1-2/2006, p. 16. to lack of evidence, no other Member States may prosecute the defendant for the 59 Critical remarks on national derogations by F. Zeder, Verbot der Doppelbestra- same facts even if they dispose of the necessary evidence. In such scenarios, ma- fung (ne bis in idem) in der EU: Fragen, Fragen, Fragen – und einige Antworten, terial justice may only be satisfied in the first prosecuting State, which may reopen AnwBl 2007, p. 465. the case if it receives the evidence in question from abroad. 60 Initiative of the Hellenic Republic, op. cit. (note 1) and Green Paper, op. cit. 47 The Court underlined that in Van Straaten there was no need to deliver a (note 58). general ruling on whether an acquittal that is not based on a determination of the 61 SN 1123/09 of 14 January 2009, Council of the European Union. For this merits of the case may fall within Art. 54 of the CISA. C-150/05 Van Straaten [2006] proposal, see also the reports in the news section of this issue.

Mutual Recognition of Judicial Decisions in Criminal Matters with Regard to Probation Measures and Alternative Sanctions

Hanna Kuczyńska

I. Creation of an Area of Mutual Recognition of Judicial criminal procedural area within the European Union.1 The Decisions in Criminal Matters principle of mutual recognition is fast becoming a foundation of cooperation in criminal matters among the EU Member The adoption of Council Framework Decision 2008/947/JHA States. From the present stage of development of the Euro- of 27 November 2008 on the application of the principle of pean Union, it has become clear that it is necessary to base mutual recognition to judgments and probation decisions with cooperation on measures of a new quality and accept the idea a view to supervision of probation measures and alternative of equivalency of decisions in criminal matters in all the EU sanctions is a next step in the process of creating a common Member States. It has become an accepted legal measure to

eucrim 1–2 / 2009 | 43 Development of European Criminal Procedure Law create a common area of criminal proceedings within the law Until now, the operating instruments on probation were those of the European Union. However, despite wide acceptance of adopted by the Council of Europe; the most important of this idea, there is no uniform definition of this particular no- them is the Convention of 30 November 1964 on the Super- tion.2 There is no legal act regulating, in a coherent way, the vision of Conditionally Sentenced or Conditionally Released entire area of cooperation that would indicate which groups of Offenders,7 which has been ratified by 12 Member States (with legal decisions should enjoy the privilege of mutual recogni- numerous reservations). This Convention was intended to pro- tion and which organs should decide on the binding force of vide for those conditionally released to be able to leave the ter- such decisions. There is no doubt that this measure of coopera- ritory of the sentencing state under the condition that adequate tion should be defined more precisely. Presently, this principle control over these persons would be executed. The main idea has not yet been systematically introduced.3 was to offer assistance in the process of social rehabilitation. However, this cooperation was limited by the usual condi- Although the principle of mutual recognition is recognised as tions of cooperation applied by the Council of Europe: double a foundation of cooperation, it has become operative only as criminality and the non-political character of the offence. The a result of the introduction of legal acts paving the way for Council of Europe established a certain pattern of coopera- this specific form of cooperation. The present practice is based tion, which has become common in the cooperation among the on adopting several legal regulations relating only to specific Member States. The basic rule provides for the execution only problems – commonly those most pressing in cooperation. after applying the procedure of exequatur, either in its simple This method of legislation results in a fragmentary regulation form or in the form of conversion of a decision. The procedure and cannot substitute a coherent system of mutual recognition. of exequatur is a special procedure for recognition and en- Therefore, the principle of mutual recognition is applied only forcement of foreign judgments according to which a foreign in several areas of cooperation in criminal matters, such as: judgment must be modified in order to be declared enforce- arrest warrants, freezing of property, execution of fines. How- able. Now, with the new Framework Decision, the Member ever, the analysis of the relevant non-binding Communications States of the European Union have agreed that decisions relat- of the Commission leads to the conclusion that all areas of co- ing to probation should be executed without the procedure of operation among Member States should be based on mutual exequatur. The Framework Decision is to replace the Council recognition of decisions – starting from the state of investiga- of Europe Convention from 6 December 2011 (Art. 23(1)). tion till final decisions.4 The envisaged instruments let us pre- sume the direction in which the next initiatives will go. Within the framework of the European Union, several attempts were made to facilitate the application of the principle of mutual recognition in the area of probation and alternative sanc- II. The Development of Judicial Cooperation Regarding tions beforehand. The Green Paper on the approximation, mu- Probation Law tual recognition and enforcement of criminal sanctions in the European Union8 of 2004 focuses on areas where a need has The execution of final decisions in criminal matters is the most been identified to develop further harmonisation among the advanced form of mutual recognition.5 Final decisions (sen- Member States’ legislation. It notes, on the basis of a compara- tences, verdicts) should be executed without the need to adapt tive analysis of the Member States’ legislation on the various them – in a procedure of conversion – into the frameworks of modes of enforcement of custodial penalties, that states have the executing state’s law.6 The principle of mutual recogni- a relatively large variety of modes of enforcement, allowing a tion should apply to all forms of final decisions: sentencing to gradual transition from prison to freedom. The approach gener- fines, imprisonment, applying probation, verdicts of not guilty ally stems from the desire to make use of forms of punishment as well as sentences applying alternative sanctions, such as that are more appropriate than firm imprisonment, as a means community work or the deprivation of qualifications. of supporting the offender’s reintegration into society, as well as from problems linked to overcrowding in prisons. The most The latest development in this area, ultimately regulating the widespread form is the suspended sentence, available in al- functioning of the mutual recognition of judgments on proba- most all the Member States. Electronic surveillance is applied tion and alternative sanctions, is the above-mentioned Frame- in six Member States and is under testing or consideration in a work Decision on the application of the principle of mutual further five. All the other instruments (suspended or deferred recognition to judgments and probation decisions with a view sentencing, day-release, sentences served in installments, and to supervision of probation measures and alternative sanctions. home detention) are known and applied only in a minority of Member States should take the necessary steps to implement Member States. However, the Green Paper considered only the provisions of the Framework Decision by 6 December existing possibilities of harmonisation, not providing for any 2011. measure to solve the problem of diversities.

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III. The Transnational Handling of Disqualifications to another Member State on the latter’s request. Even without a request to forward data on such convictions, relevant infor- The above-mentioned Green Paper also considers the prob- mation concerning convictions of citizens of a Member State lem of disqualifications, which can be issued as an additional should be forwarded to the requesting state. Such an obliga- or independent sanction, as an alternative to sanctions con- tion would function only for relations between two states, and nected with the deprivation of liberty. For the purpose of the information about disqualifications would be shared only be- Green Paper, disqualification means a penalty withdrawing or tween the two states concerned, not in all the European Union. restricting rights or a preventive measure, whereby a natural This initiative was never adopted, and the only instrument or legal person is prohibited, for a limited or unlimited period, concerning disqualifications that exists among Member States from exercising certain rights, occupying a position, going to is the Council of Europe Convention on driving disqualifica- certain places, or doing certain things.9 It is usually connected tions of 17 June 1998.14 However, the Convention does not with the deprivation or limiting of rights – such as the right to mention mutual recognition of such alternative sanctions. be present in specified places, take up certain occupations – e.g., connected with taking care of children – for a given time. This problem was further reflected on in the Communication of IV. Mutual Recognition of Probation Decisions the Commission to the Council and Parliament on disqualifica- with a View to Supervision of Probation Measures tions arising from criminal convictions in the European Union and Alternative Sanctions 10 of 21 February 2006. It was stressed that the efficiency of 1. Objectives of the Framework Decision decisions concerning the deprivation of rights depends on their widespread recognition in all the Member States. The Com- The Framework Decision on the application of the principle of mission planned to facilitate recognition of such decisions, mutual recognition to judgments and probation decisions with admitting at the same time that it might be difficult due to a view to supervision of probation measures and alternative huge differences among the legal systems. Another difficulty, sanctions (in the following: “the Framework Decision”) aims namely the lack of necessary information on existing decisions at providing for a more effective instrument as it is based on related to disqualifications, was pointed out. the principle of mutual recognition. In this context, it is note- worthy that the Council Framework Decision 2008/909/JHA So far, the area of recognition of alternative sanctions has been on the application of the principle of mutual recognition to regulated in a fragmentary manner. The Framework Decision judgments in criminal matters, imposing custodial sentences of 22 December 2003 on combating the sexual exploitation or measures involving the deprivation of liberty for the pur- of children and child pornography,11 for instance, requires the pose of their enforcement in the European Union, was adopted adoption of measures guaranteeing that persons sentenced for on the same day, 27 November 2008.15 Together, these two crimes involving child abuse will be deprived of the right to Framework Decisions form a coherent area of legislation in the carry out occupations related to taking care of children. Pres- field of recognition of final judgments, regardless of their na- ently, from the existing measures, we can see that there is no ture: either related to the deprivation of liberty or to alternative uniform means of information exchange among the Member solutions. The Framework Decisions have certain advantages States on the topic of disqualifications. Moreover, such deci- over previous Conventions. First, regulation in the form of a sions are not always present in national criminal records. A framework decision is more flexible and proved to be more ef- person deprived of a driving license or the right to engage in ficient than legislating in the form of a Convention. Secondly, certain occupations can proceed with these activities in another the scope of application of framework decisions is much wider Member State. In a situation involving a factual lack of bound- and adjusted to present requirements of cooperation. aries and the freedom of movement, such a situation should not be accepted. There can be no doubt that, in order to make The main goal of the Framework Decision on probation meas- a sanction truly effective, information about disqualifications ures and alternative sanctions is to build foundations for the should be available in all the Member States.12 recognition of two types of decisions: measures connected to probation and sanctions alternative to the deprivation of liber- A proposition to solve the problems resulting from lack of in- ty. It was intended that the provisions will enable the sentenced formation was contained in an Initiative of the Kingdom of persons to “preserve family, linguistic, cultural and other ties, Denmark with a view to adopting a Council Decision on in- but also to improve monitoring of compliance with a view to creasing cooperation among European Union Member States preventing recidivism thus paying due regard to the protec- regarding disqualifications of 19 September 2002.13 Accord- tion of victims and the general public.”16 The provisions are ing to the proposition, each Member State would have the pos- to facilitate the social rehabilitation of sentenced persons and sibility to forward information in relation to disqualifications facilitate the application of probative measures and alternative

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sanctions in case of offenders who do not live in the state of  an obligation to avoid contact with specific persons; conviction. The aim is to resolve the cross-border nature of  an obligation to avoid contact with specific objects, which such situations as well as ensure the execution of measures have been used or are likely to be used by the sentenced person connected to probation and sanctions alternative to the dep- with a view to committing a criminal offence; rivation of liberty on a Union-wide scale. The characteristic  an obligation to compensate financially for the injury caused feature is the need to extend supervision over the execution by the offence and/or an obligation to provide proof of compli- of probation measures and alternative sanctions in states other ance with such an obligation; than only the state issuing such a decision.  an obligation to carry out community service;  an obligation to cooperate with a probation officer or with a representative of a social service having responsibilities in 2. The scope of application respect of sentenced persons;  an obligation to undergo therapeutic treatment or treatment The Framework Decision applies only to final judgments or or- for addiction. ders issued by a court establishing the guilt of a natural person (Art. 2 (1)). These judgments must include solutions regard- Additionally, Member States should provide information ing probation measures or alternative sanctions, irrespective about other probation measures and alternative sanctions that of whether, in the relevant Member State, such decisions are they are prepared to supervise. The recitals of the Framework included in the judgment itself or in a separate decision. Such Decision give further information on what type of measures decisions are grouped into four types (Art. 2): The first type should be subject to mutual recognition. Accordingly, pro- relates to custodial sentences or measures involving the depri- bation measures and alternative sanctions include, inter alia: vation of liberty if a conditional release is granted on the basis orders relating to behaviour (such as the obligation to cease of that judgment or by a subsequent probation decision (Art. 2 the consumption of alcohol), residence (such as an obligation (1(a)) and Art. 2 (5)). Second, there are suspended sentences, to change residence for reasons of domestic violence), educa- i.e., measures involving the deprivation of liberty, the execution and training (such as an obligation to take a “safe-driving tion of which is conditionally suspended, wholly or in part course”), leisure activities (such as an obligation to cease play- (Art. 2 (2)). Third, there are conditional sentences – judgments ing or attending certain sports) as well as limitations on or in which the imposition of a sentence has been conditionally modalities of carrying out a professional activity (such as an deferred by imposing one or more probation measures instead obligation to seek a professional activity in a different working of a custodial sentence or measure involving a deprivation of environment).18 The set of probation measures may relate to liberty (Art. 2 (3)).17 The fourth type relates to alternative sanc- the use of electronic monitoring, although not in all the Mem- tions – defined in the Framework Decision as sanctions other ber States such solutions have been adopted. The decision than a custodial sentence involving the deprivation of liberty does not apply to the execution of sentences imposing custo- or a financial penalty, imposing an obligation or instruction dial sentences or measures relating to the deprivation of liberty (Art. 2 (4)). The last category is the widest – it concerns all as well as sentences imposing financial penalties and confisca- other measures that exist in national systems of law. tion orders as they fall within the scope of other Framework Decisions. As regards the types of probation measures and alternative sanctions to be recognised, the Framework Decision does not distinguish between alternative sanctions and probation meas- 3. The procedure of execution of probation decisions ures and joins them into one group (Art. 4). It includes in this group: The basic rule of the Framework Decision is to make it possi-  an obligation for the sentenced person to inform a specific ble for sentenced persons to forward a judgment accompanied authority of any change of residence or workplace; by a probation decision (or only a judgment if it itself contains  an obligation not to enter certain localities, places, or areas probation measures) or an alternative sanction to the Member defined in the issuing or executing state; State in which he/she resides (or wants to return to), with the  an obligation containing limitations on leaving the terri- aim of the recognition of this decision (Art. 5). The decision tory of the executing state, instructions relating to behaviour, on forwarding the probation decision or alternative sanction residence, education and training, leisure activities or contain- should be made by a competent authority of the issuing Mem- ing limitations on or modalities of carrying out a professional ber State. Such a decision should be accompanied by a cer- activity; tificate containing essential information about the sentenced  an obligation to report at specified times to a specific person and the decision, and it should be sent to the competent authority; authority of the executing state (Art. 6 (1)). Such authorities,

46 | eucrim 1–2 / 2009 Mutual Recognition of Judicial Decisions in Criminal Matters as mentioned in the Framework Decision, are institutions – to recognise a sentence, the specific behaviour giving rise to judicial or non-judicial – designated by the state if they are this conviction must be penalised by both the requesting state competent to take such decisions under national law. If the re- and the requested state. It can certainly expected that, in cases ceiving authority is not competent to take any probation deci- involving suspended sentences and probation measures, the sions under national law, it should take the necessary measures scope of most serious crimes in the number of forwarded deci- to forward the matter to the competent authority (Art. 6 (7)). sions is not going to be high. However, the revocation of the suspension of the execution of the judgment or the decision on conditional release, as well An important guarantee for the executing state is the possibil- as imposition of a custodial sentence or measure involving ity to adjust the forwarded decision on the probation measure deprivation of liberty in the case of alternative sanctions or a or alternative sanction to its own legal system (Art. 9 (1)). If custodial sentence, if taken by an authority other than a court, the nature or duration of the relevant probation measure or al- should be reviewed, on the request of the person concerned, by ternative sanction, or the duration of the probating period, is a court, or another independent court-like body. The decision incompatible with the law of the executing state, it may be may be forwarded to a Member State other than the one of adapted in line with the nature and duration of the probation residence under the condition that it agrees to take part in ex- measure and alternative sanctions for equivalent offences in ecution of such a decision. Once the executing Member State national law. The affected Member State should, however, receives the decision, it is obliged to recognise it and take, change the decision only in such a way that it still corresponds without delay, all the necessary steps for the supervision of as much as possible with the one imposed in the issuing state. probation measures or alternative sanctions. The decision as Furthermore, the duration of such a probation period should to recognition of the decision should be taken within the time not then be lower than the maximum duration provided by the limit of 60 days of receipt of the decision (Art. 12). The state executing state. can only postpone the decision of recognition if the certificate accompanying the decision is incomplete, thus making it impossible to execute the decision. 4. Supervision of the execution of probation decisions

A Member State has the right to refuse recognition of such a If the executing state decides to recognise such a decision, it decision only in exceptional cases (Art. 11). There are only thus agrees to supervise the probation measures or alternative facultative grounds for refusal, connected with incomplete- sanctions. As a result, only the rules and procedures of the ex- ness of the certificate, violation ofne bis in idem principle, the ecuting state can be applied to the execution of the probation lack of a possibility for execution in the national law, exist- decision or alternative sanction. The executing state not only ing immunity, the age of the sentenced person, and rendering supervises the probation measures but also is responsible for the judgment in absentia. Another ground for refusal relates to taking all other decisions relating to that judgment. The com- situations in which the specific probation decision concerns a petent authority of the executing state has the jurisdiction to person who has not been found guilty, such as persons who are take all subsequent decisions relating to a suspended sentence, mentally ill, and the decision provides for medical/therapeutic conditional release, conditional sentence, and alternative sanc- treatment that the executing state cannot supervise. Addition- tions, in particular in case of non-compliance with obligations ally, if the offence has been committed on the territory of the and instructions connected to such a decision (Art. 14). Such executing state, the recognition can be refused – but only in decisions may relate to the modification of obligations or in- exceptional cases. structions, the revocation of the suspension of the execution of the judgment or of the decision on conditional release, and As regards the lack of double criminality, it may be a ground the imposition of a custodial sentence or measures involving for refusal only in some cases. There is a list of offences which, the deprivation of liberty in case of an alternative sanction or if they are punishable in the issuing state by a custodial sen- conditional sentence. The issuing state should be notified of tence or a measure involving deprivation of liberty for a maxi- such decisions. mum period of at least three years, give rise to recognition of the judgment or probation decision, without verification of the If the probation or alternative sanction decision does not con- double criminality (Art. 10). The list of offences is well known tain a custodial sentence or measure involving the deprivation from other Framework Decisions in the third pillar. Such lists of liberty in case of non-compliance with the obligations or have become a characteristic feature of the instruments relat- instructions provided by the issuing state, it implies that the ing to mutual recognition. They provide for automatic recog- executing state can only take a decision to execute such a mod- nition only in cases of most serious crimes. Other crimes are ification of obligations or instructions or duration period as is subject to the condition of double criminality – when, in order contained in the probation decision. The executing Member

eucrim 1–2 / 2009 | 47 Development of European Criminal Procedure Law

State may decide – at the time of adoption of the Framework ecuting state has recognised the decision forwarded to it and Decision or at a later stage – that it does not assume the obliga- informed the issuing state of its recognition, the issuing state tion of supervision as to certain categories of cases. Then, the still does not have any competence in relation to supervision jurisdiction of the issuing state is in force and the executing of the probation measures or alternative sanctions. Such a situ- state is under an obligation to inform the issuing state of any ation requires an additional action on the part of the executing incompliance of the sentenced person with a probation meas- state, if the sentenced person decides to return to the issuing ure or alternative sanction. There are two types of decisions state. Then, the competent authority of the executing state may that can be taken by both the executing and the issuing states: transfer jurisdiction in respect of supervision back to the com- amnesty and pardon (Art. 19). However, only the issuing state petent authority of the issuing state, if the sentenced person is may decide on the applications for review of the judgment, no longer a resident on its territory. However, the flexibility which forms the basis for the probation measures or alterna- of the measures regarding recognition seems to be the main tive sanctions. In a situation in which new criminal proceed- advantage. Not only does mutual recognition relate to a broad ings are taking place in the issuing state, the executing state range of measures and decisions, but it can still be extended by can transfer the jurisdiction back in respect of the supervision. the decision of a Member State. There is no obligation to supervise if, in fact, it is impossible to supervise the probation measure or alternative sanction be- On the territory of the European Union, we are experiencing cause the sentenced person cannot be found in the territory of a gradual introduction of the mutual recognition principle. We the executing state. cannot forget about the fragmentary character of existing legislation though, which results in serious gaps in cooperation. In order to facilitate cooperation in criminal matters, mechanisms V. Conclusions should be increasingly standardised. Greater coherency in the adoption of legal acts regulating cooperation would solve most The main disadvantage of the Framework Decision’s provi- of the obstacles. Many of the existing problems could be also sions is the limited obligation to forward information, which solved thanks to a gradual harmonisation of legal provisions relates only to the issuing and executing states of which the in Member States in the area of criminal law and criminal pro- sentenced person is a resident. In the situation of still greater cedure. The Framework Decision described above will help mobility of EU citizens, limiting the recognition of probation put an end to the inefficiency of disqualification measures in decisions or alternative measures to only one more state than other states than the state of issuance. Presently, they are en- the issuing one is becoming an outdated solution. Problems forceable only in one state, namely the state of issuance. The may appear if the sentenced person is a resident in several Framework Decision will enable recognition of a judgment Member States or has no place of residence. Nevertheless, as accompanied by a probation decision or an alternative sanc- a common criminal record for all the Member States is still tion in EU Member States other than the state of conviction, lacking, any other solution would be much more complicated When this Framework Decision comes into force, probation and more difficult to achieve. We can only hope – taking into decisions and alternative sanctions will become a real discom- consideration the latest developments in this area – that such a fort to a criminal who will be subjected to probation measures record will soon be functioning. Even so, we will experience and restrictions as well as deprived of certain rights in all the problems with much divergence among the Member States, states where he chooses to reside. The Framework Decision which record different types of decisions in different types of also forms a part of the criminal procedural area in the Euro- data bases. In some states, there is no common record for final pean Union and, some day, may also become part of the Code sentencing decisions and probation or decisions on alternative of Criminal Procedure for the European Union if such a codi- measures. In addition, once the competent authority of the ex- fication comes into being.

1 OJ L 337 of 16 December 2008, p. 102. 2 G. De Kerchove, L’espace judiciaire pénal européen après Amsterdam et le Hanna Kuczyńska, sommet de Tampere, in : Vers un espace judiciaire pénal européen, Brussels 2000, p. 14; A. Weyembergh, L’avenir des mécanismes de coopération judiciaire pénale Justice’s assistant, Supreme Court of the Republic entre les Etats membres de l’Union européenne, in: Vers un espace judiciaire pénal of Poland, Penal Chamber européen, Brussels 2000, p. 165. 3 A. Górski, A. Sakowicz, Bariery prawne integracji europejskiej w sprawach karnych, Warsaw 2005, p. 8. 4 Communication from the Commission to the Council and the European Parlia- ment: Mutual recognition of final decisions in criminal matters, COM(2000) 495

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final; Communication from the Commission to the Council and the European Parlia- sanctions in the European Union (presented by the Commission), COM(2004) 334 ment: Communication on the mutual recognition of judicial decisions in criminal final, 2.1.7. matters and the strengthening of mutual trust between Member States COM(2005) 10 COM(2006) 73 final. 195 final. 11 Council Framework Decision 2004/68/JHA of 22 December 2003 on combating 5 L. Gardocki, Zagadnienia internacjonalizacji odpowiedzialności karnej za the sexual exploitation of children and child pornography, OJ L 13 of 20 January przestępstwa popełnione za granicą, Warsaw 1979, p. 92; D. Paridaens, Transfer 2004. of Enforcement of Criminal Judgments, in: B. Swat, A. Klip (eds.), International 12 COM(2005) 195 final. Criminal Law in The Netherlands, Freiburg im Breisgau 1997, p. 195. 13 Initiative of the Kingdom of Denmark with a view to adopting a Council Decision 6 See: A. Górski, A. Sakowicz, Bariery prawne … op. cit., pp. 35-36; G. Stessens, on increasing cooperation between European Union Member States with regard to The Principle of Mutual Confidence between Judicial Authorities in the Area of disqualifications, OJ C 223 of 19 September 2002. Freedom, Justice and Security, in: G. de Kerchove, A. Weyembergh (eds.) L’espace 14 European Convention on the International Effects of Deprivation of the Right to pénal européen: enjeux et perspectives, Brussels 2002, p. 95. Drive a Motor Vehicle of 28 April 1983, CETS No. 88. 7 CETS No. 51. See: L. Moreillon, A. Willi-Jayet, Coopération judiciaire pénale 15 OJ L 327 p.27 of 5 December 2008. dans l’Union européenne, Paris 2005, pp. 305-307; E. Muller-Rappard, M.C. 16 Recital 8. Bassiouni M, European Inter-state Co-operation in Criminal Matters. The Council 17 Probation decisions are judgments granting conditional release or imposing of Europe’s Legal Instruments, Dordrecht 1993, pp. 457-480. probation measures. Probation measures mean the imposition of obligations and 8 COM(2004) 334 final. instructions in cases of a suspended sentence or conditional release. 9 Green Paper on the approximation, mutual recognition and enforcement of criminal 18 Recital 10.

Vers la mort annoncée du juge d’instruction en France

Elisabeth Schneider

This article deals with the reform proposals in France pertaining to the replacement of the investigative judge (juge d’instruction) by a new authority (juge de l’instruction) with the mandate to control the investigations carried out under the responsibility of the prosecution. In the first part, the article highlights the different points of criticism expressed over the past decades concerning the concept of the investigative judge (I.). The first part also shows the current competences of the investigative judge in the criminal procedure law of France. The article further illustrates the converging points between the two different proposals relating to the reform of the investigative judge, which are, on the one hand, the proposals made by President Sarkozy in his speech of 7 January 2009 and, on the other hand, the report of the Léger Commission, which was mandated with elaborating proposals regarding the reform of the criminal law and criminal procedure (II.). In a third part, the article presents arguments made in favor or against the suppression of the investigative judge (III.). The article concludes that a suppression of the investigative judge implies a reorganisation of the prosecution office in order to be in conformity with the requirements of European law, namely in order to implement the findings of the Medvedyev case of the European Court of Human Rights stating that the public prosecutor in France cannot be considered a judge in the sense of Article 5 para. 3 of the European Convention on Human Rights (IV.).

I. Introduction sident de la République sur proposition du Garde des sceaux et après avis du Conseil supérieur de la magistrature.2 Lors de l’audience solennelle de rentrée de la Cour de cassation du 7 janvier 2009, le Président de la République Nicolas Ce projet présidentiel s’inscrit dans un contexte national et Sarkozy faisait un discours dans lequel il proposait le remplace- européen favorable à la suppression du juge d’instruction ment du juge d’instruction par le juge de l’instruction.1 Le chef mais également dans le sillage du drame d’Outreau3 dont le de l’Etat n’avait pas l’intention de faire un jeu de mot entre les traumatisme a parcouru la Nation française et le corps judi- expressions « juge d’instruction » et « juge de l’instruction » ciaire.4 Suite aux dysfonctionnements apparus lors de cette mais formulait l’objectif de réaliser une réforme importante de tragédie, ont été mis en place un groupe de travail présidé par l’instruction pénale. Le juge d’instruction est un magistrat du Jean-Olivier Viout, procureur général près la cour d’appel de siège du tribunal de grande instance nommé par décret du pré- Lyon (février 2005), et une commission d’enquête parlemen-

eucrim 1–2 / 2009 | 49 Le développement du droit de la procédure pénale européen taire par l’Assemblée nationale qui a déposé un rapport conte- tant voulu éviter14 et fut à son tour enterré. Aujourd’hui, pour- nant 80 propositions (juin 2006).5 Dans le souci d’éviter les tant, la mort du juge d’instruction semble bien proche à la lec- erreurs judiciaires grâce au regard croisé de plusieurs juges ture des propositions contenues dans le discours du Président d’instruction sur les procédures, la loi n°2007-291 du 5 mars Sarkozy et du pré-rapport du comité de réflexion sur la jus- 2007 tendant à renforcer l’équilibre de la procédure pénale tice pénale présidé par Philippe Léger, qui a le 6 mars 2009 a, en réponse aux conclusions de la commission, notamment formulé sept propositions portant sur la phase préparatoire du prévu la mise en place de 91 pôles de l’instruction regroupant procès pénal.15 plusieurs juges d’instruction qui sont seuls compétents, depuis le 1er mars 2008, pour connaître des informations en matière Avant d’étudier les projets actuels de réforme du juge d’ins- de crime et des informations faisant l’objet d’une cosaisine6 truction en France, nous proposons de décrire la répartition (art. 52-1, 83-1 et 83-2 CPP) et la collégialité de l’instruction des fonctions entre l’enquête et l’instruction en procédure pé- préparatoire7 à compter du 1er janvier 2010 pour les actes les nale française. En droit français, l’enquête est conduite par la plus importants de l’instruction (mise en examen, octroi du police judiciaire sous le contrôle et les directives du procureur statut de témoin assisté, placement sous contrôle judiciaire, de la République. En comparaison aux dix- sept procureurs saisine du juge des libertés et de la détention, mise en liberté de la République présents en Allemagne fédérale, le ministère d’office, avis de fin d’information, ordonnances de règlement public est en France plus puissant parce qu’il est construit de et de non-lieu).8 manière centralisée en étant soumis au ministre de la justice au sommet de la hiérarchie judiciaire.16 Contrairement à l’Al- Considéré comme une des pierres angulaires du système ré- lemagne où prévaut le principe de légalité, le procureur de la pressif français,9 le juge d’instruction fait l’objet de nom- République peut décider de poursuivre ou non une infraction breuses critiques depuis de nombreuses années. Comme l’a dont il a eu connaissance en vertu du principe d’opportunité affirméRobert Badinter, le juge d’instruction a toujours deux des poursuites.17 faces en tant qu’enquêteur et juge « à demi Salomon et à demi Maigret » et c’est principalement la figure emblématique du Mis en place par la loi du 15 juin 2000, le juge des libertés juge d’instruction en tant que « juge hybride » qui cristallise et de la détention (JLD) intervient dans le cadre de l’enquête le plus de critiques. Ainsi, dès 1949, le Professeur Donnedieu préliminaire en cas de perquisitions, visites domiciliaires et de Vabres10 proposait dans son rapport de confier, au cours de saisies.18 Il est compétent pour prendre les décisions de place- l’enquête, les pouvoirs d’investigation et de police judiciaire ment en détention provisoire et de prolongation de la mesure au ministère public et de réserver à un juge qualifié, le « juge ainsi que pour statuer sur les demandes de mise en liberté de l’instruction », les décisions juridictionnelles. Considéré formées par le détenu. Il peut également révoquer le contrôle comme trop révolutionnaire, le projet fut enterré. judiciaire et le placement en détention de la personne mise en examen. Par ailleurs, le juge d’instruction doit le saisir par A la demande de M. Arpaillange, Ministre de la Justice, la ordonnance motivée afin de lui transmettre le dossier avec les commission présidée par Mme le Professeur Delmas-Marty réquisitions du parquet.19 Malgré un domaine de compétence remettait un rapport portant sur La mise en état des affaires limité, le JLD possède dans cette partie de la procédure une pénales.11 S’appuyant sur les principes fondamentaux prove- fonction d’organe de contrôle analogue à celle du juge d’ins- nant de la jurisprudence du Conseil constitutionnel et de celle truction allemand. de la Cour européenne des droits de l’homme, cette Commis- sion proposait la séparation des fonctions juridictionnelles et En revanche, la répartition des compétences est très diffé- d’investigation exercées par le juge d’instruction ainsi que la rente entre le système allemand et français lors de l’instruc- conduite de toutes les investigations sous la direction du Par- tion. Le juge d’instruction est compétent pour la recherche quet. De cette manière, le juge aurait pu contrôler la légalité de preuves mais il ne peut pas introduire la procédure d’ins- des investigations et protéger les libertés individuelles. Paral- truction par lui-même. Il doit être saisi par un réquisitoire lèlement, la Commission prévoyait de renforcer les droits de la introductif du procureur de la République ou par une plainte défense durant la période d’enquête.12 Par ailleurs, ce rapport avec constitution de partie civile. Le juge d’instruction est faisait le constat que le parquet traitait déjà des affaires défé- compétent pour instruire en matière de crimes (instruction rées devant le tribunal en comparution immédiate ou par voie obligatoire), de délits (instruction facultative qui se rencontre de saisine directe.13 uniquement dans les procédures complexes) et de contraventions (instruction rare seulement sur la demande du procu- Mais ce rapport suscita de l’incompréhension devant la volon- reur de la République).20 Le juge d’instruction n’intervient té de confondre les fonctions d’enquête et de poursuite, ce que que dans 5 % des procédures mais il s’agit des cas les plus les auteurs du Code d’instruction criminelle en 1808 avaient graves et les plus complexes.21

50 | eucrim 1–2 / 2009 Vers la mort annoncée du juge d’instruction

Toute l’instruction repose sur une procédure écrite contenue II. Les propositions du Président Sarkozy dans les procès-verbaux rédigés par le juge d’instruction.22 Se- et du pré-rapport Léger lon l’article 81 CPP, « le juge d’instruction procède, conformé- 1. La suppression du juge d’instruction et la séparation ment à la loi, à tous les actes d’information qu’il juge utiles à des fonctions d’instruction et d’enquête la manifestation de la vérité. Il instruit à charge et à décharge. » Il peut procéder à une mise en examen, à des constatations Selon le Président de la République, « la confusion entre les matérielles, à des auditions des témoins et de la partie civile, pouvoirs d’enquête et les pouvoirs juridictionnels du juge à des interrogatoires de la personne mise en examen, à des d’instruction n’est plus acceptable. Un juge en charge de l’en- perquisitions, des saisies, des écoutes téléphoniques, à la dé- quête ne peut raisonnablement veiller, en même temps, à la signation d’experts, au placement sous contrôle judiciaire, à garantie des droits de la personne mise en examen […] Le la délivrance de mandats. L’article 122 CPP prévoit que « le juge d’instruction, en la forme actuelle ne peut être l’arbitre. juge d’instruction peut décerner, selon les cas, un mandat de Comment lui demander de prendre des mesures coercitives, recherche, de comparution, d’amener ou d’arrêt ». des mesures touchant à l’intimité de la vie privée alors qu’il est avant tout guidé par les nécessités de l’enquête il est donc Depuis la loi du 15 juin 2000, la procédure de mise en déten- temps que le juge d’instruction cède la place à un juge de l’ins- tion provisoire est confiée au juge des libertés et de la déten- truction, qui contrôlera le déroulement des enquêtes mais ne tion qui doit être saisi par une ordonnance motivée du juge les dirigera plus. »25 d’instruction qui lui transmet le dossier de la procédure ac- compagné des réquisitions du procureur de la République. Le Ainsi, c’est le ministère public qui devrait à l’avenir diriger JLD statue après un débat contradictoire qui peut être public les enquêtes et le juge de l’instruction dépendant du Siège26 en présence de l’avocat et peut soit ordonner le placement en serait chargé de protéger les droits fondamentaux de la per- détention provisoire de la personne qui bénéficie alors d’un sonne à l’encontre de laquelle une procédure d’instruction a délai pour préparer sa défense,23 soit ne pas l’envisager et pro- été ouverte. noncer par exemple un placement sous contrôle judiciaire. Le pré-rapport Léger recommande premièrement la suppres- Le Ministère public ou la personne mise en examen peut faire sion du juge d’instruction et propose de « transformer le juge appel devant la Chambre de l’instruction sans effet suspen- d’instruction en juge de l’enquête et des libertés investi ex- sif. Depuis la loi PERBEN II, l’article 137-4 CPP prévoit que, clusivement de fonctions juridictionnelles ». En effet, le juge malgré le refus du juge d’instruction, le procureur de la Répu- d’instruction ne pourrait agir avec une stricte neutralité et blique peut, en matière criminelle ou pour les délits punis de ne pourrait donc assumer pleinement une fonction de juge 10 ans d’emprisonnement, saisir lui-même le juge des libertés contrairement au parquet qui par sa nature et sa structure serait et de la détention de réquisitions de mise en détention provi- mieux adapté à ce travail d’enquête. soire pour des motifs de sûreté. Deuxièmement, ce comité propose de « simplifier la phase Si les nécessités de l’information l’exigent, le juge d’instruc- préparatoire du procès pénal en instituant un cadre unique tion peut se rendre dans toute l’étendue du territoire national d’enquête » dans le but d’unifier la phase préparatoire en don- et peut déléguer ses pouvoirs en délivrant une commission nant pleinement au ministère public un rôle de directeur de rogatoire.24 Le président de la Chambre de l’instruction et la l’enquête et d’autorité de poursuite. Le comité s’est prononcé Chambre de l’instruction contrôlent l’activité du juge d’ins- « contre une rupture du lien existant entre le parquet et le pou- truction. Le juge d’instruction dispose également des pouvoirs voir exécutif » dans la mesure où ce dernier est chargé d’ap- de juridiction et rend des ordonnances susceptibles d’appel de- pliquer harmonieusement une politique pénale sur l’ensemble vant la Chambre de l’instruction. du territoire.

Nous nous proposons à présent d’étudier tout d’abord les points Troisièmement, le comité propose d’ « instituer un juge de de convergence entre les propositions présidentielles et celles l’enquête et des libertés disposant de pouvoirs importants » et formulées par le comité Léger (II) puis les critiques et les ré- compétent pour décider des mesures les plus attentatoires aux serves qu’elles ont suscitées (III). Mais force est de constater libertés individuelles et contrôler la loyauté de l’enquête. aussi que si la France choisit de supprimer le juge d’instruction qualifié par Balzac de « colonne qui soutient tout notre droit Le juge de l’enquête et des libertés disposerait de larges pré- criminel », elle devra aussi revoir le statut du Parquet pour être rogatives. Bien que le comité ne précise pas son rang hiérar- en harmonie dans le cadre européen avec la jurisprudence de chique, ce juge serait compétent pour décider des actes d’en- la Cour européenne des droits de l’homme (IV). quête les plus attentatoires aux libertés individuelles, tels que

eucrim 1–2 / 2009 | 51 Le développement du droit de la procédure pénale européen les écoutes téléphoniques, la sonorisation ou la perquisition ficierait de droits équivalents à ceux du mis en examen dans hors flagrance. Il pourrait également, à la demande dupro- l’information actuelle, à savoir principalement l’accès à tout cureur, délivrer des mandats d’amener ou d’arrêt, prolonger moment au dossier de la procédure, l’assistance d’un avocat une mesure de garde à vue ou prononcer un placement sous lors des interrogatoires, la possibilité de demander des actes contrôle judiciaire. De plus, ce juge statuerait sur les éven- et de saisir la chambre de l’enquête et des libertés pour obte- tuelles demandes d’actes formulées par les parties, en cas de nir la nullité d’un acte. Le régime renforcé s’appliquerait en refus du parquet d’y consentir. Par conséquent, le juge de l’en- matière criminelle ou lorsqu’il s’agirait de prononcer une me- quête et des libertés serait le garant du « respect des droits » sure restrictive de liberté telle que la détention provisoire ou le desdites parties tout au long du déroulement de l’enquête et contrôle judiciaire. De plus, le mis en cause pourrait demander constituerait « un recours » pour celles-ci « en cas d’inertie du au parquet l’application de ce régime renforcé dans toute pro- parquet ». cédure et, en cas de refus, saisir le juge de l’enquête. Ce dernier pourrait faire droit à la demande en présence d’«indices graves ou concordants » de participation aux faits à l’encontre 2. Le changement de procédure : de l’intéressé. une procédure protectrice des libertés individuelles La décision de placement en détention provisoire serait prise Le projet présidentiel souhaite la mise en place d’ « une nou- par le juge de l’enquête et des libertés, à moins que le mis en velle procédure pénale, plus soucieuse des libertés, plus adap- cause ou le juge de l’enquête ne souhaitent que la décision soit tée aux évolutions de la police technique et scientifique. A prise par une collégialité.34 Ce comité propose également de l’heure de l’ADN,27 la procédure pénale ne peut plus avoir réduire les délais butoirs concernant la détention provisoire et pour socle le culte de l’aveu ».28 Le Président de la République de renforcer les droits du détenu provisoire quant aux condi- voudrait par ailleurs remplacer la procédure inquisitoire au tions de sa détention. cœur du procès pénal par la procédure accusatoire et voudrait organiser « un réel débat contradictoire dès l’origine du procès Selon le comité, il faut également « renforcer le respect des qui nous donnera les voies et moyens d’un véritable habeas droits et des libertés individuelles dans la phase préparatoire corpus à la française ».29 Notons que le caractère inquisitoire au procès pénal » en réformant la garde à vue suivant trois li- de l’instruction trouve son origine dans la procédure inquisito- gnes directrices : l’augmentation des droits du gardé à vue, le riale prévue par l’ordonnance de 1670 critiquée par des juris- resserrement des conditions de son utilisation et la création tes (Beccaria) et des philosophes (Voltaire et Montesquieu).30 d’une retenue judiciaire pour majeurs d’une durée maximale Cependant, le Code d’instruction criminelle de 1808 reprenait de six heures. L’avocat pourrait intervenir dès le début de la le système inquisitoire de l’Ancien Régime pour la procédure garde à vue pour un entretien d’une demi-heure, puis pourrait préparatoire au procès pénal. Prenant la suite du lieutenant- s’entretenir à nouveau à la douzième heure35 et être présent criminel du roi,31 le juge d’instruction n’en restait pas moins aux auditions si la mesure est prolongée, soit à l’issue de la soumis au Parquet dans la mesure où il était un « officier de po- vingt-quatrième heure. De plus, la loi devrait indiquer que le lice judiciaire supérieur ». Il faudra attendre le Nouveau Code placement d’une personne en garde à vue ne pourrait interve- de procédure pénale en 1958 qui proclamait clairement que le nir uniquement si cette contrainte est nécessaire et seulement juge d’instruction était un juge et devienne une « juridiction pour des faits pour lesquels une peine d’emprisonnement su- d’instruction du premier degré ».32 Voulant renforcer le carac- périeure à un an est encourue. tère accusatoire de la procédure, le Président de la République préconise enfin la présence d’un avocat dès les premiers mo- Par ailleurs, le comité suggère que la délivrance du mandat ments. d’amener ne puisse intervenir que si les faits reprochés sont punissables d’une peine d’emprisonnement. Quant au pré-rapport Léger, il propose de développer les droits Enfin, le pré-rapport Léger propose de « simplifier, harmoni- du contradictoire33 de différentes manières. Tout d’abord, il ser et sécuriser la procédure préparatoire au procès pénal » en s’agit de « garantir et renforcer les droits de la victime et du harmonisant les délais de procédure et les différents régimes mis en cause tout au long de l’enquête ». Le mis en cause de- de garde à vue. vrait pouvoir bénéficier de deux régimes de droits distincts : régime soit restreint soit renforcé. 3. La réforme du secret de l’enquête Le régime restreint serait applicable à toute personne mise en cause dans une enquête préliminaire ou de flagrance. En re- Le Président de la République voudrait introduire également vanche, placé sous le régime renforcé, le mis en cause béné- un autre changement important de la procédure pénale36 en

52 | eucrim 1–2 / 2009 Vers la mort annoncée du juge d’instruction supprimant le secret de l’instruction. L’instruction est secrè- De plus, poursuit-il, on peut aussi constater « la volonté d’em- te37 en premier lieu à l’égard des parties et notamment de la pêcher l’instauration de la collégialité de l’instruction » au personne mise en examen. En deuxième lieu, l’instruction est 1er janvier 2010 prévue par la loi du 5 mars 2007.43 En effet, secrète parce qu’elle est faite seulement en présence du gref- dans son article 136, la loi n°2009-523 du 12 mai 2009 de fier et le cas échéant de l’avocat mais hors de la présence du simplification et de clarification du droit et d’allègement des public ou de témoins. En troisième lieu, l’instruction est se- procédures reporte au 1er janvier 2011 l’entrée en vigueur des crète parce les divers éléments de la procédure ne doivent être dispositions de la loi du 5 mars 2007 imposant une collégialité ni divulgués ni publiés, ni même communiqués aux tiers, par obligatoire pour l’ensemble des instructions. les personnes qui l’ont dirigée ou qui y ont participé. Selon le Professeur Delmas-Marty, la collégialité a été repor- D’après le Président Sarkozy, « le secret de l’instruction est tée pour des questions budgétaires44 et certains membres du une fable à laquelle plus personne ne croit », car ce secret est pré-rapport Léger ont affirmé « qu’il n’y a pas lieu de modifier souvent violé dans la pratique. Le secret de l’instruction est les règles existantes, en cours d’évolution, et qu’il faut expé- expressément prévu par l’article 11 CPP.38 rimenter suffisamment la cosaisine ainsi que l’instruction par une formation collégiale, dont l’entrée en vigueur est prévue C’est pourquoi il voudrait le remplacer par le secret de l’en- par la loi le 1er janvier 2010 ». D’autres membres ont souligné quête. Parallèlement, le projet présidentiel voudrait renforcer que « des réformes en profondeur, telle que celles suggérées la communication du Ministère Public « afin, le cas échéant, de par la majorité, faisant suite à tant d’autres réformes, risquent démentir les informations fausses qui, souvent à dessein, sont d’accroître l’insécurité juridique et peuvent manquer leur ef- diffusées dans le seul but de nuire à tel ou tel ».39 fet ».45 A cet égard, le Professeur Delmas-Marty dénonçait, dès 1990, l’accumulation de réformes partielles sans réflexion Le pré-rapport Léger propose de « réformer le secret de l’en- d’ensemble du système pénal, parlant à ce sujet de « rapiéçage, quête » en maintenant le principe de secret mais en dépénali- parfois même ce bégaiement législatif, paraît irréaliste et né- sant sa violation. Mais en pratique il serait toujours possible de faste ».46 poursuivre les auteurs de violations du secret de l’instruction pour violation du secret professionnel en application des arti- L’Association française des magistrats instructeurs préconise à cles 226-13 et 226-14 CP. Cette réforme serait l’aboutissement travers la voix de sa Présidente, Catherine Giudicelli, le déve- d’une évolution originale de la procédure pénale française « ni loppement d’une cosaisine souple et améliorée c’est-à-dire « la accusatoire, ni inquisitoire, mais contradictoire ».40 conduite d’un dossier d’information particulièrement grave ou complexe par deux juges d’instruction ou plus afin de se répar- Si ces propositions de réforme de la justice pénale par le Pré- tir les investigations à réaliser et échanger sur les décisions à sident de la République et le pré-rapport Léger apparaissent prendre. C’est donc une notion qui se décline par dossier. »47 comme l’aboutissement d’un long processus, elles sont dis- cutées de manière intensive dans l’ensemble du monde judi- En deuxième lieu, les partisans de la suppression du juge ciaire, universitaire et politique et suscitent de nombreuses d’instruction invoquent l’incompatibilité des fonctions d’en- questions et critiques. quêteur et de juge car le juge devrait être neutre alors que l’enquêteur aurait pour mission de rechercher les preuves et élaborer des hypothèses de culpabilité de la personne accu- III. Critiques et réserves sée. Certains parlent même de juge schizophrène puisque le juge d’instruction est censé instruire à charge et à décharge.48 Même si aujourd’hui, très peu d’affaires sont instruites par le L’affaire d’Outreau constitue un exemple bien connu des juge d’instruction, il s’agit de s’interroger sur la nécessité de dangers de l’unilatéralité de l’enquête du juge d’instruction supprimer l’institution du juge d’instruction. Et le Professeur face à des dossiers complexes et très médiatisés. Mais com- Pradel de poser la question : « Tous les péchés du juge d’ins- me l’observe l’Avocat général près la Cour d’appel de Paris truction méritent-ils sa mise à mort ? »41 Philippe Bilger « Là où un juge a failli, au coeur d’un désas- tre collectif, davantage à cause d’un tempérament déserté par Et en premier lieu, c’est la méthode suivie en tant que telle l’écoute, la volonté de comprendre et la lucidité que pour des qui est dénoncée. Le Président de la République a énoncé ses déficiences techniques qui n’ont été que des conséquences, propositions de réforme sans attendre l’issue des travaux du un autre, à Angers, accomplissait un remarquable travail loué comité Léger et a donné l’impression qu’il dictait à la commis- par tous. Ce n’est donc pas l’impéritie personnelle d’un ma- sion ses conclusions. Selon les propos du Professeur Conte, gistrat qui doit déterminer la conviction sur notre sujet mais « on a renoué avec le fait du prince ».42 l’examen du système actuel. »49

eucrim 1–2 / 2009 | 53 Le développement du droit de la procédure pénale européen

En troisième lieu, les arguments selon lesquels un système Par ailleurs, la création d’un nouveau juge de l’enquête et des accusatoire et l’attribution de davantage de pouvoirs au Par- libertés implique le renforcement de moyens financiers par quet permettraient de lutter plus efficacement contre les- er le déploiement de postes de magistrats suffisants pour qu’ils reurs judiciaires et seraient plus protecteurs des libertés indi- puissent se consacrer sereinement à leur fonction, la recon- viduelles sont également critiqués. D’une part, les systèmes naissance d’un statut de haut niveau pour que ces juges puis- anglo-saxons doivent aussi faire face à un certain pourcentage sent avoir autorité sur le procureur et enfin le renforcement de d’erreurs judiciaires. Ainsi, le professeur Philippe Conte cite moyens juridiques afin que le juge puisse intervenir tout au une étude universitaire selon laquelle aux Etats-Unis 68 % long de l’enquête afin de trancher les litiges entre le parquet et des 5760 condamnés à mort entre 1973 et 1995 ont vu leur la défense et notamment le contrôle du choix entre le régime condamnation réformée en appel en raison d’une erreur des restreint ou renforcé. Enfin, le dessaisissement du parquet de- premiers jurés ; 58 % seraient de race noire ; grâce aux nou- vrait pouvoir être demandé à la juridiction d’appel par le juge velles techniques de l’examen des empreintes génétiques, 200 des libertés en cas de dysfonctionnement grave.53 condamnés ont été déclarés innocents et libérés grâce à l’action d’une organisation non gouvernementale américaine.50 D’autre part, dans un système accusatoire, les parties doivent IV. Le statut du Parquet et les développements se procurer leurs propres preuves éventuellement en recourant en droit européen aux services d’avocats spécialisés et des investigateurs privés. Seules les personnes mises en cause et les victimes bénéfi- La question du statut du Parquet français se trouve à nouveau ciant des moyens financiers pourront bénéficier d’une justice sous les feux de la rampe depuis le jugement de l’affaire Med- de qualité. Telle est l’opinion de l’avocat célèbre, Jacques vedyev54 le 10 juillet 2008 par la Cour européenne des droits Vergès, qui affirme que la procédure accusatoire est injuste et de l’homme. Le contentieux porte sur les conditions dans n’évite pas les erreurs judiciaires en citant le système améri- lesquelles un bateau pavillon cambodgien transportant de la cain : « Quand vous êtes Simpson, que vous avez de l’argent, drogue fut arraisonné par un navire militaire français près du vous prenez les meilleurs avocats, vous influencez sans peine Cap-Vert. Les militaires français ont détenu à bord les mem- la presse. Si de surcroît votre avocat dispose d’un gros budget bres de l’équipage durant treize jours jusqu’à Brest où ils ont pour mener une enquête, vous serez acquitté. Si vous êtes un été placés en garde à vue puis mis en examen pour trafic de petit noir de l’Alabama, accusé dans des conditions troubles stupéfiants. Une partie des marins ont alors introduit une re- d’avoir tué un flic, vous vous retrouvez avec un petit avocat quête en se fondant sur l’article 5 de la Convention européenne commis d’office, sans grande expérience des rouages média- des droits de l’homme devant la cour parce qu’ils s’estimaient tico-judiciaires, sans budget. Au final, vous serez condamné à victimes d’une privation arbitraire de liberté pendant les trei- mort. »51 Nous pouvons en déduire que l’on risque d’aboutir à ze jours passés à bord en raison notamment de l’absence de une justice à deux vitesses en violation du principe d’égalité contrôle de cette détention par une autorité judiciaire.55 de tous devant la justice. Les juges strasbourgeois ont fait partiellement droit à cette re- C’est pour cette raison que les moyens humains et financiers quête en formation de chambre. La Cour affirme que la priva- doivent donc mis en oeuvre dans l’organisation de la réforme tion de liberté – à la différence de l’arraisonnement du navire de la procédure pénale. En effet, il faudrait renforcer subs- en tant que tel – ne reposait pas sur une base légale suffisante, tantiellement les équipes des parquets chargés de suivre les tant au regard du droit international que du droit français. La enquêtes puisqu’elles devraient assumer le travail effectué Cour relève surtout « que les normes juridiques sus-évoquées jusqu’à présent par le juge d’instruction. n’offrent pas une protection adéquate contre les atteintes ar- bitraires au droit à la liberté » en affirmant, notamment, que De plus, en accordant au Parquet des pouvoirs auparavant dé- « force est […] de constater que le procureur de la République volus aux juges du siège et en réservant le déclenchement du n’est pas une « autorité judiciaire » au sens que la jurispru- procès pénal uniquement au procureur de la République, ne dence de la Cour donne à cette notion : comme le soulignent les risque –t – on pas d’aboutir à « une caste d’intouchables pou- requérants, il lui manque en particulier l’indépendance à l’égard vant violer la loi pénale en toute impunité assurée qu’elle est du pouvoir exécutif pour le pouvoir être ainsi qualifié ».56 de l’inertie du parquet » ?52 Les affaires Elf, Borrel, Kieffer ou encore Clearstream auraient – elles pu voir le jour si les Ainsi, si la France a été condamnée pour violation de l’arti- investigations avaient été sous le contrôle du Parquet soumis cle 5 § 1, en revanche sur le terrain de l’article 5 § 3 de la à la tutelle politique ? Il existe un risque de pression exercée Convention,57 la Cour a estimé qu’il existait « des circonstan- sur le parquet pour enterrer une enquête en décidant de classer ces tout à fait exceptionnelles » qui permettaient une exception une affaire sans suite. à l’« exigence de promptitude »58 pesant sur les Etats quant au

54 | eucrim 1–2 / 2009 Vers la mort annoncée du juge d’instruction fait de traduire aussitôt les personnes privées de liberté devant à-vis du pouvoir exécutif puisqu’au sommet de la hiérarchie un juge.59 De même, la garde à vue de deux à trois jours sur le judiciaire se trouve le Garde des Sceaux, il y a dans le fait sol français a été jugé raisonnable par la Cour,60 de sorte que de refuser de considérer le Parquet comme une autorité judi- la requête est rejetée sur ce point. Cependant, la Cour rappelle ciaire « un pas qu’il fallait oser franchir ».68 Il remarque que une seconde fois que « la détention imposée aux requérants à les membres du Parquet sont des magistrats qui appartiennent bord du Winner n’était pas sous la supervision d’une « autorité au corps judiciaire car ils sont recrutés par le même concours, judiciaire » au sens de l’article 5 (le procureur de la Républi- peuvent passer du Parquet au siège et inversement tout au long que n’ayant pas cette qualité) ».61 de leur carrière et enfin « leur état d’esprit et leur indépendance ne saurait fluctuer aussi fortement au gré de leurs différentes Contrairement au Conseil constitutionnel français62 qui a esti- affectations, même s’il est évident que les missions – et les mé que la notion d’« autorité judiciaire », au sens de l’article 66 garanties – ne sont pas les mêmes selon les fonctions ». de la Constitution,63 incluait les magistrats du parquet, la Cour européenne des droits de l’homme refuse la qualité d’autorité Force est de constater que l’accroissement des pouvoirs du judiciaire au Procureur de la République. Cette solution des parquet semble appartenir à un mouvement européen au détri- juges européens provient de l’absence d’indépendance du par- ment du juge d’instruction qui se trouve marginalisé. Ainsi, si quet vis-à-vis de l’exécutif. En effet, l’article 5 de l’ordonnan- l’on se tourne sur la scène de l’Union Européenne : le Traité ce n°58-1270 du 22 décembre 1958 portant loi organique re- de Lisbonne institue un Parquet Européen destiné à poursui- lative au statut de la magistrature dispose que « Les magistrats vre les infractions portant atteinte aux intérêts financiers de du parquet sont placés sous la direction et le contrôle de leurs l’Union ainsi qu’à lutter contre la criminalité grave ayant une chefs hiérarchiques et sous l’autorité du garde des sceaux, mi- dimension transfrontalière de manière transnationale.69 nistre de la justice. A l’audience, leur parole est libre ». Dans les faits, l’ancienne Garde des Sceaux64 Rachida Dati n’a pas Par ailleurs, un rapport du Sénat intitulé L’instruction des Af- hésité à dire qu’elle était le « chef des procureurs » et a procédé faires Pénales publié en mars 2009 constate que l’examen des à des mutations et à des convocations de manière brutale. procédures pénales allemande, anglaise, espagnole, italienne, néerlandaise, portugaise et suisse montre la place grandissante Le gouvernement français a demandé le renvoi devant la du Ministère Public. L’Espagne est le seul pays où l’instruc- Grande Chambre mais cet arrêt « interpelle sur le statut am- tion des affaires pénales les plus importantes est encore réa- bigu du parquet ».65 La Grande Chambre66 a placé cette affaire lisée par un juge. Les Pays-Bas et le Portugal ont conservé en délibéré et rendra certainement son arrêt en fin d’année ou le juge d’instruction mais en restreignant son rôle. L’Allema- au début de l’année 2010. gne70 et l’Italie ont supprimé le juge d’instruction pour confier l’instruction au Ministère Public respectivement en 1975 et en Si la suppression du juge d’instruction doit être entérinée, en 1989.71 Enfin, la Suisse a récemment adopté un nouveau code contre partie, il est plaidé pour une indépendance complète de procédure pénale, qui fait disparaître le juge d’instruction du Parquet vis-à-vis du pouvoir exécutif et un renforcement au profit du Ministère Public. des droits de la défense considérés comme indispensables, qui seraient actuellement trop faibles par rapport aux enquêtes de Face à ce mouvement européen en défaveur du juge d’instruc- la police.67 tion, héritage de la procédure inquisitoire issu du ius commune, nous pouvons interroger à la suite du Professeur Renucci si la Pourtant, le Professeur Renucci estime que la décision des ju- Cour européenne des droits de l’homme « cherche à imposer, ges européens constitue un « séisme judiciaire » et s’il est in- sans en avoir eu le mandat, un modèle anglo-saxon de justice contestable que pose problème la dépendance du Parquet vis- accusatoire à l’ensemble du continent ».72

1 Discours de Monsieur le Président de la République à l’audience solennelle millénaire. Mélanges offerts à Jean Pradel, Paris, Cujas, 2006, pp. 335-347. de la Cour de Cassation Mercredi 7 janvier disponible sur le site internet de 3 Cette affaire a donné lieu à un procès aux assises de Saint-Omer (Pas-de-Ca- la Cour de cassation 2009 http://www.courdecassation.fr/institution_1/occa- lais) du 4 mai au 2 juillet 2004, puis un procès en appel à Paris en novembre 2005. sion_audiences_59/debut_annee_60/discours_m._sarkozy_12048.html. Nous La mère des enfants victimes des actes de pédophilie (elle-même mise en cause l’abrégerons par la suite Discours. dans le dossier) a reconnu à l’audience que les treize accusés étaient innocents 2 Sur le juge d’instruction, voir notamment B. Bouloc, Procédure pénale, Paris, et qu’elle avait menti pendant plus de trois ans. Durant cette période, les vies de Dalloz, 21e éd, 2008, pp. 602 s. et P. Chambon et Ch. Guéry, Droit et Pratique de certains accusés ont été « fracassées » : longues périodes de détention provisoire, l’instruction Préparatoire. Juge d’instruction. Chambre de l’instruction, Paris, Dalloz, perte de la garde de leurs enfants, perte de leur travail, obligation pour certains de Collection Dalloz Action, 2007, 1040 p. G. Giudicelli-Delage, La figure du juge de vendre leur maison …etc. Celle-ci provoqua une émotion dans l’opinion publique l’avant-procès entre symboles et pratiques, in Le droit pénal à l’aube du troisième et mit en évidence les dysfonctionnements du monde politique, des médias, de

eucrim 1–2 / 2009 | 55 Development of European Criminal Procedure Law

19 Art. 137-1 al. 4 CPP ; Le JLD intervient dans la procédure applicable à la cri- Elisabeth Schneider minalité et à la délinquance organisée. Cf. Art. 706-88, 706-89, 706-90 et 706-95 Researcher at the Max Planck Institute for Foreign and CPP. International Criminal Law; head of the section specializing 20 Art. 79 CPP. 21 B. Lavielle et J. Danet, « juge d’instruction : ni cet excès d’honneur ni cette in the criminal law of the francophone European countries. indignité » in Gaz. Pal. Dimanche 22 au mardi 24 février 2009, p. 1. Currently writing her doctoral thesis under the supervision 22 Tout ce qui n’est pas fixé dans les procès-verbaux ne pourra pas être invoqué of Professor Jean-Pierre Baud (University of Paris Nanterre) dans la suite du procès. in the field of the legal history of the moral person. 23 Le juge des libertés et de la détention peut décerner mandat de dépôt qui consiste dans l’ordre donné au chef de l’établissement pénitentiaire de recevoir et de détenir la personne mise en examen. Cf. supra p. 3. 24 Art. 93 CPP. l’institution judiciaire et des acteurs sociaux, notamment dans la lutte contre la 25 Discours, ibid. pédophilie annoncée depuis 1996 au plus haut niveau de l’Etat. Cf. F. Aubenas, La 26 On oppose les magistrats du siège au magistrat debout ou Procureur de la méprise d’Outreau, Paris, Seuil, 2005, 254 p.; S. Guinchard, De l’irresponsabilité République. des juges d’instruction: pour combien de temps encore in Le droit pénal à l’aube du 27 Acide désoxyribonucléique. troisième millénaire. Mélanges offerts à Jean Pradel, Paris, Cujas, 2006, pp. 349- 28 Discours, ibid. 351. 29 Discours, ibid. 4 Rapport du Sénat, L’instruction des Affaires Pénales de mars 2009. 30 F. Tricaud, Le procès de la procédure criminelle à l’âge des Lumières in Archi- 5 Rapport Assemblée Nationale n° 3125, 2006-2007 au nom de la commission ves de philosophie du droit, t. 39, Le Procès, Sirey, 1995, p. 145. d’enquête chargée de rechercher les causes des dysfonctionnements de la justice 31 « L’ancêtre du juge d’instruction est le lieutenant criminel, créé par la Déclara- dans l’affaire dite d’Outreau et de formuler des propositions pour éviter leur renou- tion de François Ier du 14 janvier 1522, et dont les Edits de Henri II de mai 1552 et vellement. Sur les suites législatives du drame d’Outreau, lire J. Pradel, Les suites novembre 1554 ont précisé les attributions. » Cf. P. Chambon et Ch. Guéry, op. cit, législatives de l’affaire dite d’Outreau. À propos de la loi n° 2007-291 du 5 mars p. 10. 2007 in JCP n°14, 4 avril 2007, pp. 13-21. 32 H. Leclerc, op. cit., p. 126. 6 Art. 83-1 CPP: «Lorsque la gravité ou la complexité de l’affaire le justifie, l’in- 33 Erigé en tant que principe directeur de la procédure pénale, l’article préliminaire formation peut faire l’objet d’une cosaisine […] Le président du tribunal de grande du CPP tel qu’il résulte de la loi du 15 juin 2000 dispose que « la procédure pénale instance dans lequel il existe un pôle de l’instruction ou, en cas d’empêchement, doit être équitable et contradictoire et préserver l’équilibre des droits des parties ». le magistrat qui le remplace désigne, dès l’ouverture de l’information, d’office ou Notons que le principe du contradictoire est prévu également par l’article 6 de la si le procureur de la République le requiert dans son réquisitoire introductif, un Convention européenne des droits de l’homme. Cf. A. Beziz-Ayache, Dictionnaire ou plusieurs juges d’instruction pour être adjoints au juge d’instruction chargé de de droit pénal général et de procédure pénale, v° Contradictoire (Principe du), 4e l’information. » Nous utiliserons dans la suite de l’article l’abréviation CPP pour édition, Paris, Ellipses, 2008, pp. 60-61. Code de Procédure Pénale et CP pour Code Pénal. 34 A l’instar du mis en cause, la victime pourrait devenir partie à une enquête et 7 Selon le principe de la collégialité, l’instruction préparatoire serait confiée à trois bénéficier des droits du contradictoire et de la défense. Le système de la plainte juges. avec constitution de partie civile serait transposé dans la phase préparatoire. 8 Voir infra sur le report de cette mesure en 2011. 35 L’avocat aurait accès aux procès-verbaux d’auditions de son client. 9 Sur le juge d’instruction, lire P. Chambon et Ch. Guéry, Droit et Pratique de 36 Cl. Choquet et C. Giudicelli, Regards croisés : pratique du contradictoire durant l’instruction préparatoire. Juge d’instruction. Chambre de l’instruction, Paris, Dalloz, l’instruction in Les Cahiers de la justice. Revue semestrielle de l’Ecole nationale de 2007, 1040 p. ; B. Bouloc, Procédure pénale, Paris, Dalloz, 21e éd, 2008, pp. 602 s. la magistrature, Vol. La prévention des erreurs judiciaires, Dalloz, 2008, pp. 90-98. 10 H. Donnedieu de Vabres, « La réforme de l’instruction préparatoire » in RSC 37 P. Chambon et Ch. Guéry, op. cit., p. 105 s. 1949, p. 500. 38 Art. 11 CPP: « Sauf dans les cas où la loi en dispose autrement et sans préju- 11 Rapport préliminaire en 1989 et rapport final en juin 1990. dice des droits de la défense, la procédure au cours de l’enquête et de l’instruction 12 H. Leclerc, L’accès au juge d’instruction in Justice et Cassation. Revue An- est secrète. Toute personne qui concourt à cette procédure est tenue au secret nuelle des Avocats au Conseil d’Etat et à la Cour de Cassation. Dossier l’accès au professionnel dans les conditions et sous les peines des articles 226-13 et 226-14 juge, 2008, Paris, Dalloz, p. 128. du code pénal. » 13 H. Leclerc, op. cit., p. 128. 39 Discours, ibid. 14 H. Leclerc, ibid ; Sur cette question, lire l’article intéressant de M.-R. Marrero, 40 Pré-rapport p. 30. Entre poursuite et instruction : Ministère Public et Police Judiciaire, 1808-1957 in 41 Sur les discussions dans la doctrine à propos du juge d’instruction, voir Ph. Staatsanwaltschaft. Europäische und amerikanische Geschichten (Herausgegeben Conte, « Les galeux de la République » in JCP 2006 I 101 ; J. Pradel, „Haro sur le von B. Durand, L. Mayali, A. Padoa Schioppa und D. Simon), Frankfurt am Main, juge d’instruction“ in Recueil Dalloz 2006 n° 4 p. 244 ; idem, Un problème français : Vittorio Klostermann, 2005, pp. 171-202. que faire du juge d’instruction ? in Festschrift für Heike Jung zum 65. Geburtstag 15 Comité de réflexion sur la justice pénale. Rapport d’étape sur la phase am 23. April 2007, Nomos, 2007, pp. 729-736 ; idem, Tous les péchés du juge d’ins- préparatoire du procès pénal. La version définitive du rapport Léger devrait remise truction méritent-ils sa mise à mort ? in Recueil Dalloz 2009 p. 438 s. ; G. Roujou au Président de la République en septembre 2009. Sur le pré-rapport Léger, lire de Boubée, Réformer ? oui Bouleverser non in Recueil Dalloz 2006, pp. 740-741 ; H. Matsopoulou, A propos du rapport d’étape du Comité de réflexion sur la justice C. Giudicelli, Le juge d’instruction évoluera ou disparaîtra in AJ Pénal, n°2 Février pénale in JCP N°13, 25 mars 2009, pp.4-6 ; Ph. Conte, « Les propositions du 2009, pp. 68-71. pré-rapport du comité de réflexion sur la justice pénale » in Droit Pénal. Revue 42 Ph. Conte, Les propositions du pré-rapport du comité de réflexion sur la justice Mensuelle Lexisnexis Jurisclasseur, Juin 2009, pp. 6-8. pénale in Droit Pénal. Revue Mensuelle Lexisnexis Jurisclasseur, Juin 2009, p. 7 et 16 H. Satzger, Die Rolle des Richters im Ermittlungsverfahren in Deutschland und H. Matsopoulou, A propos du rapport d’étape du Comité de réflexion sur la justice Frankreich in 2. Deutsch-Französisches Strafrechtsvergleichendes Kolloquium pénale in JCP N°13, 25 mars 2009, pp.4-6. „Der Bicentenaire des Codes d’instruction criminelle“ 13/14 März 2009 an der 43 J. Leblois-Happe, Quelle collégialité pour l’instruction en 2010 ? in AJ Pénal Universität des Saarlandes (Saarbrücken) (à paraître). n°9, Septembre 2008, p.364. 17 Art. 40 al. 1 CPP ; S’il permet d’adapter la solution judiciaire à chaque cas, ce 44 M. Delmas-Marty, Le parquet, enjeu de la réforme pénale in Le Monde, 25 Mai principe peut conduire à introduire un risque d’arbitraire entre les particuliers. Cf. 2009 www.apcars.org/le-parquet-enjeu-de-la-reforme-penale. L. Simat-Durand, Le parquet et l’opportunité des poursuites in Gaz. Pal. Doctrine, 45 Pré-rapport p. 8. 20 juin 1996, pp. 46 M. Delmas-Marty, ibid. 18 Art. 76 al. 4 CPP ; M. Le Monde, Le juge des libertés et de la détention : une 47 C. Giudicelli, Le juge d’instruction évoluera ou disparaîtra in AJ Pénal, n°2 nouvelle avancée ? in RSC 2001, pp. 51-54 ; C. Guéry, Le juge des libertés et de Février 2009, p. 70. la détention : un juge qui cherche à mériter son nom » in Recueil Dalloz 2004, pp. 48 Voir supra p. 4. 583-586. 49 Blog de Philippe Bilger. http://www.philippebilger.com/

56 | eucrim 1–2 / 2009 The Constitution says yes [but …] to the Lisbon Treaty

50 Ph. Conte, Les propositions du pré-rapport du comité de réflexion sur la justice 64 Ministre de la Justice. pénale in Droit Pénal. Revue Mensuelle Lexisnexis Jurisclasseur, Juin 2009, p. 8. 65 F. Natali et L. L. Forster, Justice pour tous : une alternative à la suppression du 51 A. Fabbri, Je suis l’enfant qui joue. Interview de Jacques Vergès in Les cahiers juge d’instruction in Gaz. Pal. Dimanche 22 au Mardi 24 Mars 2009, p. 3. de la justice. Revue semestrielle de l’Ecole nationale de la magistrature, Dalloz, 66 L’audience de la Grande Chambre s’est tenue le 6 mai 2009. hiver 2008, p. 130. 67 Sur la question de l’indépendance en matière pénale des décisions du Ministère 52 Ph. Conte, ibid. Public vis-à-vis de la tutelle du pouvoir exécutif, voir J. Pradel et J.-P. Laborde, Du 53 M. Delmas-Marty, ibid. ministère public en matière pénale à l’heure d’une éventuelle autonomie ? in Re- 54 CEDH, 10 juillet 2008, Medvedyev c/ France, Affaire n° 3394/03. Nous abrége- cueil Dalloz 1997 chron. 141-144 et A. Cadiot-Feidt, Quelques réflexions relatives à rons par la suite Affaire Medvedyev. la suppression du juge d’instruction in Gaz. Pal. N°17 du 17 janvier 2009, p. 8. 55 N. Hervieu, Le sort du parquet français en jeu devant la Cour européenne des 68 J.F. Renucci, Un séisme judiciaire : pour la CEDH les magistrats du parquet droits de l’homme. Audience in www.droits-libertes.org. ne sont pas une autorité judiciaire in Recueil Dalloz 2009 n°9, pp. 600-601. M.-L. 56 Affaire Medvedyev § 61. Rassat, Encore et toujours la Cour européenne des droits de l’homme in JCP La 57 « toute personne arrêtée ou détenue […] doit être aussitôt traduite devant un Semaine Juridique Edition Générale N° 16-17. 15 Avril 2009. pp. 3-4. juge ou un autre magistrat habilité par la loi à exercer des fonctions judiciaires » 69 Traité de Lisbonne. Journal officiel de l’Union européenne, Chap. 4 Coopéra- 58 Affaire Medvedyev § 65. tion judiciaire en matière pénale, Article 69 E. Voir aussi à ce sujet L. Picotti, La 59 En l’espèce, « L’inévitable délai d’acheminement du Winner vers la France » Cf. perspective de réforme des traités européens et la lutte contre la fraude in eucrim, Affaire Medvedyev § 67. 1-2, 2008, p.72. 60 Affaire Medvedyev § 68. 70 Sur la réforme en Allemagne, lire Ch. Wittekindt, Enterrement du juge d’instruc- 61 Affaire Medvedyev § 68. tion : révolution ou réforme ? in Questions d’Europe n°140, 22 juin 2009, pp. 1-6 et 62 C.C. 93-326 DC, 11 août 1993, Loi relative aux contrôles et vérifications H. Satzger, ibid. d’identité, § 6. 71 Sur la réforme en Allemagne, lire Ch. Wittekindt, Enterrement du juge d’instruc- 63 « Nul ne peut être arbitrairement détenu. L’autorité judiciaire, gardienne de la tion : révolution ou réforme ? in Questions d’Europe n°140, 22 juin 2009, pp. 1-6 et liberté individuelle, assure le respect de ce principe dans les conditions prévues H. Satzger, ibid. par la loi. » 72 J.F. Renucci, ibid.

The Constitution says yes [but …] to the Lisbon Treaty

The Judgment of the Second Senate of the Federal Constitutional Court of 30 June 2009

Dr. Marianne Wade

The German Federal Constitutional Court was asked to decide Vertrag von Lissabon) is compatible with the Grundgesetz. In upon the constitutional compatibility of the changes foreseen contrast, the Act Extending and Strengthening the Rights of by the Treaty of Lisbon and its implementation via various acts the Bundestag and the Bundesrat in European Union Matters of legislation by the German parliamentary organs.1 Above all, (Gesetz über die Ausweitung und Stärkung der Rechte des the complainants (inter alia, a number of Members of the Ger- Bundestages und des Bundesrates in Angelegenheiten der Eu- man Bundestag and the parliamentary group “DIE LINKE”) ropäischen Union) infringes Article 38 para. 1 in conjunction argued for constitutional breaches because, in their view, the with Article 23 para. 1 of the Grundgesetz insofar as the Bun- federal government delegated powers to the EU that it was destag and the Bundesrat have not been accorded sufficient not competent to do and to such an extent as to undermine the rights of participation in European lawmaking procedures and authority of the Federal parliamentary organs (the Bundestag treaty amendment procedures. and the Bundesrat). The Constitutional Court held the competences assigned to the EU by the Treaty of Lisbon to be in line with the German Constitution (Grundgesetz), but that the I. The Complainants’ Arguments against the Lisbon Treaty foreseen legislation has failed to adequately provide for participation of the Bundestag and, where relevant, the Bundesrat The major arguments heard against the Treaty of Lisbon, in the legislative proceedings foreseen by the Treaty of Lisbon. brought forward by a unique coalition of politicians of all On balance, the Federal Constitutional Court decided that the political persuasions, included concerns that the ability of in- Act Approving the Treaty of Lisbon (Zustimmungsgesetz zum dividual German citizens to participate in the selection and

eucrim 1–2 / 2009 | 57 Development of European Criminal Procedure Law indeed to control state authority is to be diminished, that the phasises that the ability of organisations, such as the EU, to principle of democracy is undermined by the loss of compe- exercise supranational powers stems from its Member States: tences assigned to the Bundestag, and that there is inadequate “they therefore permanently remain the masters of the Trea- democratic legitimation of the EU itself (100).2 Furthermore, ties” (231). The principle of singular conferred powers is thus the assignment of competences relating to military and crimi- of central and indeed constitutional importance in express- nal justice matters amounts to a “sellout of the state’s very ing the EU’s obligation to respect the identity of the Mem- own competences” (103). Whilst the Treaty of Lisbon was ber States (as expressly stated by the Lisbon Treaty) [234]. acknowledged to have enhanced the status of the European Repeatedly, the need for national legislatures to agree to and Parliament, this development was found to be inadequate in a implement decisions taken at the EU level is emphasised (see, number of ways because voters are not equal (smaller Member e.g., 339, 344 et seq.). States having a disproportionately greater say) and the relationship between voter and legislature is far from adequate (103 et The Court clearly states that the Treaty of Lisbon does not cre- seq.). It was further argued that, by means of the Treaty of Lis- ate a federation (263)3 but extends the current German state bon, the European Union “becomes a subject of international by a supranational, cooperative dimension (277), leaving the law and can act like a state on the level of international law” Bundestag “as the body of representation of the German peo- with far-reaching powers to determine its own competences ple [and thus] the focal point of an interweaved democratic and to regulate internal security and prosecution unchecked by system” (278). Differences with regard to the failed Constitu- Member States’ constitutional courts. tional Treaty are laid out (331). The Court lays down that “to safeguard democratic principles, it may be necessary to clearly emphasise the principle of conferral in the Treaties and in their II. The Court’s Decision: Conditions for European application and interpretation in order to maintain the equi- Unification librium of the political forces of Europe between the Member States and the level of the Union as the precondition of the In a comprehensive decision, the Court held: “European uni- allocation of sovereign powers in the association” (265). De- fication on the basis of a union of sovereign states under the cisively – in line with the Court’s previous decision on the ap- Treaties may not be realised in such a way that the Member proval of the Treaty of Maastricht and keeping in mind its fa- States do not retain sufficient room for the political forma- mous “Solange”-decisions – the Federal Constitutional Court tion of the economic, cultural and social circumstances of life. continues that “as long as … the principle of conferral in co- This applies in particular to areas which shape the citizens’ operatively shaped decision-making procedures exists, taking circumstances of life, in particular the private space of their into account the states’ responsibility for integration, and as own responsibility and of political and social security, which is long as a well-balanced equilibrium of the competences of the protected by the fundamental rights, and to political decisions Union and the competences of the states is retained, the democ- that particularly depend on previous understanding as regards racy of the European Union cannot, and need not, be shaped in culture, history and language and which unfold in discourses analogy to that of a state” (272). Thus, for example, the “one in the space of a political public that is organised by party poli- man, one vote” rule must not be observed analogously (278). tics and Parliament” (249). Within the EU “the European Parliament stands between the principle under international law of the equality of states and Chiefly, the Court emphasises the EU as a Union– the core of the state principle of electoral equality” (284). The contradic- which is negotiated between sovereign, independent states to tions to be found in the equality of citizens of the Union that whom individual powers are conferred – whose role is to en- are often evident in the Treaty of Lisbon and the fact that the sure that the powers conferred remain true to this context and European Parliament is decisively linked to nationality can be to ensure “whether the inviolable core content of … constitu- explained only “by the character of the European Union as an tional identity”– in this case Germany – remains intact after association of sovereign [national] states [Staatenverbund]” this transfer of powers. It stresses such supervision to be in (287).4 As a result, the international law principle of equality line with the Grundgesetz’s fundamental openness to Europe- amongst States is offset somewhat by the idea of the majority an Law (so-called Europafreundlichkeit) and, thus, in line with of the population (291-293). the principle of loyal cooperation established by European law (Article 4 para. 3 TEU post-Lisbon). III. The Importance of the Principle of Conferral The Court identifies a number of facts clearly illustrating the Member States’ continuing sovereignty, not least each State’s In this judgment, the Federal Constitutional Court views the right to leave the Union (150, see also 295 et seq.). It em- inalienable principle of democracy as centrally supported by

58 | eucrim 1–2 / 2009 The Constitution says yes [but …] to the Lisbon Treaty the citizens’ right to vote freely and equally as well as the right areas over which national control is necessary to ensure this “to free and equal participation in public authority” as “an- include citizenship, taxes, decisions concerning military and chored in human dignity” (Article 1 para. 1 of the Grundgesetz civil force, as well as intensive interference with fundamental – 211). In particular, acts resulting in binding decisions for rights, such as imprisonment in enforcing criminal law. The citizens “in particular as regards encroachments on fundamen- limit to powers being conferred is to be drawn “where the co- tal rights must have a nexus with a freely reached majority will ordination of circumstances with a cross-border dimension is of the people” (212). Nevertheless, this principle is amenable factually required” (251). to “integrating Germany into an international and European peaceful order” and the Court acknowledges that the resulting instances of governance cannot be unconditionally bound IV. Conferral in Criminal Justice Matters and Its Limits to the specifics of the principle of democracy as seen by any one Member State or constituting state (219). Membership in Several pages (352 et seq., see also 252) of the judgment the EU or in systems such as the UN is not submission to a are devoted to a discussion of criminal justice matters. The foreign force but “voluntary, mutual commitment” amongst Court points out the significant loss of influence by national equals (220), and the judgment emphasises that the Constitu- parliaments through the supranationalisation of police and tion is indeed desirous of European integration and an order of judicial cooperation in criminal matters and the move away international peace (225), as such empowering the legislature from unanimous decision requirements (293). It emphasises to confer sovereign powers, “under the condition that the sov- that conferral of any such competence must be particularly ereign statehood of a constitutional state is maintained on the restrictive and well justified (358), stating “the core content basis of an integration programme according to the principle of criminal law does not serve as a technical instrument for of conferral and respecting the Member States’ constitutional effectuating international cooperation but stands for the par- identity, and that at the same time the Member States do not ticularly sensitive democratic decision on the minimum stan- lose their ability to politically and socially shape the living dard according to legal ethics”. The Court adds that “the fight conditions on their own responsibility” (226). Any decision to against particularly serious crime, which takes advantage of depart from such independence, e.g., by joining a federation the territorial limitation of criminal prosecution by a state, or would require an explicit declaration by the German people which, as in the case of corruption, threatens the viability of (228). the rule of law and democracy in the European Union, can be a special justification for the transfer of sovereign powers also in The Court thus spells out that any transferral of powers must this context” (359). A critical passage ends with the conclusion be fundamentally marked by the principle of conferral of sin- that “The Treaty of Lisbon … provides sufficient indications gular powers because “the trust in the constructive force of for an interpretation in conformity with the constitution” (362) the mechanism of integration cannot be unlimited” due to the and the Court emphasising that EU actions must be kept to the Constitution (238). Thus, all legislation must reflect this and it absolute minimum necessary (363-366). is “constitutionally required not to agree dynamic treaty provisions with a blanket character’” (239); competences to define With its emphasis that criminal law, both substantive and pro- further competences (Kompetenz-Kompetenz) cannot be as- cedural, is a culturally specific area of great sensitivity, the signed. All EU actions are subject to “ultra-vires” checks by Court points out that German government representatives may the Federal Constitutional Court and, where the Union-level only agree to decisions in this area being made in the Council makes no provision for it, to examinations as to whether they that invoke the bridging procedure of Art. 48 para. 7 TEU – are in line with the principle of subsidiarity. “This ensures that post–Lisbon, in order to allow them to be made by qualified the primacy of application of Union law only applies by virtue majority rather than in unanimity, if both German houses of of, and in the context of, the constitutional empowerment that Parliament have previously passed legislation to this effect continues in effect” (240). (para. 366).5 The Court also indicates that court and judicial structures are fundamentally the business of the Member The Court points out that membership in the EU provides States (368) and goes on to insist that the EU cannot replace Member States with options to influence policy areas which Germany’s own membership and right to participate in inter- would otherwise be negated by practical or territorial limits national organisations (371 et seq.). It further emphasises that (248) but adds that “European unification on the basis of a the Treaty of Lisbon in no way deprives the Member States union of sovereign states under the Treaties may, however, not of their influence upon and ability to make social policy. The be realised in such a way that the Member States do not retain Court points to the powers that Member States retain pertain- sufficient space for the political formation of the economic, ing to social and criminal justice policy via the relevant emer- cultural and social circumstances of life” (249). The policy gency break provisions, again emphasising that action taken

eucrim 1–2 / 2009 | 59 Development of European Criminal Procedure Law by a representative of the German government can be based Grundgesetz, and the national implementing legislation was solely upon instruction by the German Bundestag and, where found not to be doing so adequately. relevant, the Bundesrat (400). The Court requires the two houses of Parliament to consider The Court views an occasional refusal to follow harmonising that they bear responsibility for integration7 in a number of impulses as legitimate and not contradictory to a fundamental- cases of dynamic Treaty development: changes to primary ly international law friendly stance as required by the Consti- European law via simplified proceedings require agreement tution – it sees this principle confirmed by theKadi decision of in legislation (412). Bundestag and Bundesrat must active- the European Court of Justice in September last year (340).6 ly agree to each and every use of bridging clauses to allow changes in EU legislative proceedings (e.g., from unanimous to qualified majority voting, etc. – 413). Where bridging pro- V. Envisaged Parliamentary Participation Not Sufficient cedures foresee a right to rejection by national parliaments, to Comply with German Constitution a government representative may only agree to the proposed Resolution if parliamentarily mandated to do so. In relation The Court held that The Act Extending and Strengthening to a number of special bridging procedures, the Court again the Rights of the Bundestag and the Bundesrat in European insists that active parliamentary agreement is necessary (416). Union Matters (hereinafter: Extending Act) failed to provide Ultimately, the Court requires particular forms of legislation sufficiently for the participatory rights of the Bundestag and or mandate for the use of the flexibility clause in Art. 352 Bundesrat as regards subsidiarity checks and the right to reject TFEU, the emergency breaks of Articles 48 para. 2, 82 para. 3 the revision of the Treaty via the bridge provision of Article and 83 para. 3 TFEU as well as “extension clauses” relating 48 para. 7 TEU – post-Lisbon (407). If the Treaty texts are to judicial cooperation in criminal matters (Articles 82 para. 2 changed significantly by the Member States themselves – in subpara. 2 lit. d, 83 para. 1 subpara. 3, and 86 para. 4 and 325 line with the principle of singular conferral or to a great extent para. 3 TFEU). by the organs of the EU, even where this is done by unanimous decisions in the Council – the national Parliamentary bodies The following eucrim ID refers to a summary and the full text have a particular responsibility to participate. In Germany, of the judgment (both in English and German). this must be done in accordance with Article 23 para. 1 of the eucrim ID=0901113

a federal state that would factually be necessary at any rate. ... To the extent that Dr. Marianne Wade the development of the European Union in analogy to a state would be continued on the basis of the Treaty of Lisbon, which is open to development in this context, Senior Researcher at the Max Planck Institute for Foreign and this would be in contradiction to constitutional foundations. Such a step, however, International Criminal Law, European Criminal Law Depart- has not been made by the Treaty of Lisbon.” (376). ment. Focus of her current work is on structural development 4 Supplements inserted by the author in view of head note 1 of the decision. of a European criminal justice system, and the potential 5 This is also the case for military action (381 et seq.) as well as aspects of social of a European public prosecutor policy (400). Decisions as to military deployment must remain in the hands of the http://www.mpicc.de/ww/de/pub/home/wade.htm German Parliament. No government representative can agree to anything which would allow this to be circumvented, nor is there any provision in the Lisbon Treaty which would allow such circumvention (388). 6 For the Kadi case, see Wahl/Staats, eucrim 1-2/2008, p. 33 and F. Meyer, eucrim 1 For the action, see also eucrim 3-4/2007, p. 74. 1-2/2008, pp. 81-88. 2 The numbers refer to the paragraphs as indicated in the judgment of the Federal 7 “to the extent that the Member States elaborate the law laid down in the Trea- Constitutional Court. ties in such a way that an amendment of the law laid down in the Treaties can be 3 “The idea that the Member States’ own legal personality status in external rela- brought about without a ratification procedure solely or to a decisive extent by tions gradually takes second place to a European Union which acts more and more the institutions of the Union, albeit under the requirement of unanimity, a special clearly in analogy to a state [does not – sic] is not at all reflected in a predictable responsibility is incumbent on the legislative bodies, apart from the Federal Gov- tendency, made irreversible by the Treaty of Lisbon, in the sense of a formation of ernment, as regards participation” (409).

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