Panel: Spain in Europe. 40 years of the Spanish Constitution Communication’s title: Spain’s key role on the EU Policy Cycle to tackle Serious and Organized Crime towards a safer Union. Author: Mr. Víctor García Cuenca. 2nd Lieutenant. Ministry of Interior. Guardia Civil. Constitutional framework for Law Enforcement in Spain and the access to the EU. By way of introduction, Spanish current Constitution comes from 1978, when it entered into force. Article 104 therein states that “Law Enforcement forces, under the Government’s dependency, will have as a mission to protect the freedom of rights and liberty, and guarantee citizen security”. This milestone meant a new democratic era in this country, in which Law Enforcement would have an important role in protecting the citizenship as well as enforcing the Law. Likewise, article 126 in the then recently approved Constitution, reflected that “Criminal Police will depend upon Judiciary and Prosecutor office, as for their functions to know about crimes, detect and ensure the perpetrator, according to the terms of Law1”. Therefore, within national Law Enforcement bodies, an especially independent branch of police officers was made up, so as to make it possible to enforce Criminal Law. As a consequence, a differentiation was made between criminal police and administrative police, the latter depending upon the Government, with the duty of mainly ensuring compliance with Administrative Law2. However, only a few years after the Constitution was approved, the political and social landscape changed in a considerable manner. Firstly, in 1986, the instrument through which Spain became part of the currently named European Union3 came into force. Even though at that time there was a lot to do when it comes to the EU home affairs policy and probably nowadays there is still an important path to walk along, it represented a first step in a supranational regional area. Secondly, after the first steps taken in 19854 to abolish internal borders, creating the so- called “Schengen area”, in 19905 the Convention implementing the Schengen agreement came into force. Spain boarded this train in 19916, which meant not only the beginning of an area where freedom of movement for persons, goods, capitals and services (the so called “four liberties”) was guaranteed, but also, in criminal terms, it 1 In Spanish, the term “Criminal Police” is also known as “Judicial Police”. The translation was performed to make the text more suitable to International terminology. 2 This statement should be clarified more in-depth, because according to Organic Law 2/1986 in Spain, all police officers are considered generically speaking criminal police for the first steps of an investigation. However, especially sensitive cases have to be carried out by specialised units in charge of criminal matters only. 3 The Treaty concerning the accession of Spain was signed on the 12 June 1985 (published in the Official Journal of the EU on the 15 September 1985). At that time, the treaty addressed the accession to the European Economic Community and to the European Atomic Energy Community. 4 The first Schengen treaty was signed on 14 June 1985 in Schengen (Luxemburg) by 5 countries (France, Germany, The Netherlands, Belgium and Luxemburg). 5 On 19 June 1990, a Convention was signed to concrete the implementation of the Schengen Agreement for all the then Parties. 6 Spain with Portugal joined this Convention on 25 June 1991. supposed a new concept for Organised Crime Groups (OCG) were able to undertake their activities without internal national borders, which definitely became a challenge for all the EU Members. As a consequence, considering that the EU faced new risks against terrorism and Serious and Organized Crime (SOC) 7, “compensation measures” were needed, including a better and more holistic coordination amongst Law Enforcement agencies herein. Therefore, the European Police Office (Europol) was created in 19958, in order to enhance the police cooperation on criminal matters, providing the Members States with a central clearinghouse to coordinate national investigations with other countries, with a view on dismantling the more and more professional criminal networks. EU Policies on SOC from Maastricht to Lisbon Treaty. Before Lisbon Treaty arrived in 2009, the cooperation between Law Enforcement agencies on SOC was framed under the so-called “third pillar”, which developed the cooperation in the fields of Justice and Home Affairs (JHA). Under that pillars structure, the Union’s strategy to tackle SOC was very limited, depending in the majority unanimity upon the unanimous willingness for cooperation from the Member States in the area of freedom, security and justice. The pillars structure came to the EU with the Maastricht Treaty in 19939. Afterwards, several milestones had an important impact in the Union’s home affairs policy, by the creation of multi annual plans in this field, so as to enhance judicial and police cooperation. Firstly, in 1999 the Tampere European Council introduced, among other measures on this subject, a new concept of fighting criminal activities in the EU, calling for turning prevention into actions against OCG, within a unionwide strategy to counter crime10. Furthermore, Europol needed to increase its capacities, strengthening the reception of operational data and coordinating investigations, especially through the so-called Joint Investigation Teams”. Secondly, in November 2004 the European Council adopted a five-year action plan named “The Hague Programme”. This document addressed that, even though the result from Tampere European Council had not been as successful as they would have expected, “comprehensive and coordinated progress has been made”. Thus, considering the terrorist attacks in 2001 in the USA and 2003 in Madrid, the EU got to the commitment to a better protection of its citizens while keeping respect of fundamental freedoms and rights. Consequently, the main aim of The Hague Programme11 as regards SOC was “to fight organised cross-border crime and repress the threat of terrorism, to realise the potential of Europol and Eurojust, to carry further the mutual recognition of 7 SOC is normally used as acronym for “Serious and Organised Crime”. 8 Europol was created by the Council Act of 26 July 1995 drawing up the Convention based on Article K.3 of the Treaty on European Union, on the establishment of a European Police Office (Europol Convention) 9 The Amsterdam Treaty was signed in Maastricht on 7 February 1192, entering into force in 1993. 10 Conclusion 41 of the Presidency Conclusions. 11 “The Hague Programme: strengthening freedom, security and justice in the European Union” (2005/C 53/01). judicial decisions”. Besides, it was necessary to make use of the already created legal framework to better, quicker and easier setting up of Joint Investigation Teams in criminal matters12. Thirdly, in 2009, after the proper discussions in the JHA Council, the “Stockholm Programme13” was approved by the European Council, with the title “an open and secure Europe serving and protecting the citizen”. This text acknowledged Tampere and The Hague programmes, and the significant progress achieved by means of their policies, yet it was the time to further step up cooperation in a more coherent manner. This way, the EU agencies linked their SOC capacities by enhancing Europol and Eurojust among other measures, stating that they had “reached operational maturity”. Besides, the grounds for information exchange regarding criminal information or intelligence14 and automatic information exchange as for fingerprints, DNA and vehicle’s plate numbers15 had already been created. Thus, the next step would be to really make use of these legal instruments in a real cooperative environment. The Stockholm programme took advantage of the new legal framework provided by the recently in-force Lisbon Treaty, so as to request the Council and the Commission to “define a comprehensive EU internal security strategy” on the basis of several principles. Amongst them, it is worth highlighting the following ones16: - clarity on the division of tasks between the EU and the Member States, reflecting a shared vision of today's challenges, - reflection of a proactive and intelligence-led approach, - the need for a horizontal and cross-cutting approach […], - stringent cooperation between EU agencies, including further improving their information exchange, - the use of regional initiatives and regional cooperation, - the aim of making citizens aware of the importance of the Union’s work to protect them. As a result, the “Internal security strategy for the European Union: Towards a European security model” was approved by the European Council on 25 and 26 March 2010, under the Spanish Presidency of the EU Council of the first semester of 2010. Besides, it was demanded “an integrated approach where security professionals share a common culture, pool information as effectively as possible17”. Therefore, the European 12 Council Framework Decision 2002/465/JHA, of 13 June 2002, on joint investigation teams. 13 “The Stockholm Programme – An open and secure Europe serving and protecting the citizens” (2010/C 115/01). 14 Council Framework Decision 2006/960/JHA of 18 December 2006 on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union. 15 Council Decision 2008/615/JHA of 23 June 2008 on the stepping up of cross-border cooperation, particularly in combating terrorism