Judicial cooperation in criminal matters  

Judicial cooperation in criminal matters is based on the principle of mutual recognition of judgments and judicial decisions, and includes measures to approximate the laws of the Member States in several areas. The Treaty of Lisbon has provided a stronger basis for the development of a criminal justice area, while also stipulating new powers for the European Parliament.

Legal basis  

Articles 82 to 86 of the Treaty on the Functioning of the European Union (TFEU).

Objectives  

The progressive elimination of border controls within the EU has facilitated considerably the free movement of European citizens, but has also made it easier for criminals to operate transnationally. In order to tackle the challenge of cross-border crime, the area of freedom, security and justice (AFSJ) includes measures to promote judicial cooperation in criminal matters. The starting point is the principle of mutual recognition. Specific measures have been adopted to fight transnational crime and make sure that the rights of victims, suspects and prisoners are protected across the Union.

Achievements  

A. Institutional framework

1. The Treaty of Lisbon

Under the former ‘third pillar’ (police and judicial cooperation in criminal matters), the European Parliament was only consulted. The Treaty of Lisbon brought greater effectiveness, accountability and legitimacy to the AFSJ, by recognising Parliament’s role as a co-legislator. The Treaty has generalised (with a few exceptions) the co-decision procedure, now called the ordinary legislative procedure between Parliament and the Council (1.1.5). The old pillar structure has disappeared. The abolition of the former ‘third pillar’ led to the harmonisation of legislative instruments: instead of framework decisions, decisions and conventions, even in the criminal law field the EU adopts the ordinary EU instruments (regulations, directives and decisions).

The role of the Court of Justice has also been strengthened under the Treaty of Lisbon: the ordinary procedures for preliminary references and infringement proceedings initiated by the Commission now apply even in this area.

Member States are still able to propose legislative measures, but an initiative now requires the support of a quarter of their number (Article 76 TFEU). Provision has been made for special measures concerning enhanced cooperation, opt-outs and the so-called ‘emergency brake’. The EU Charter of Fundamental Rights, whose Title VI includes numerous rights and principles relating to criminal law and procedure, has been integrated into the Treaty of Lisbon (4.1.2).

2. The strategic guidelines in the area of freedom, security and justice

Following the Tampere, Hague and Stockholm programmes, in June 2014 the European Council defined the strategic guidelines for legislative and operational planning for the coming years within the AFSJ, pursuant to Article 68 TFEU. One of the key objectives is to develop judicial cooperation in criminal matters in the EU. A mid-term review of the guidelines is ongoing.

B. Mutual legal assistance in criminal matters

On 29 May 2000 the EU Council of Ministers adopted the Convention on Mutual Assistance in Criminal Matters, which aims to encourage cooperation between judicial, police and customs authorities within the Union by supplementing provisions in existing legal instruments, while also complying with the European Convention for the Protection of Human Rights (ECHR). Later, tools to facilitate and simplify mutual assistance were adopted, such as Directive 2014/41/EU regarding the European Investigation Order in criminal matters, which aims to simplify the cross-border gathering of evidence.

C. Mutual recognition of judicial decisions in criminal matters

The Tampere European Council stated that mutual recognition should become the cornerstone of judicial cooperation in criminal matters. The principle of mutual recognition was confirmed in the Hague and Stockholm programmes. It is a key concept for the European judicial area, as only through mutual recognition is it possible to overcome difficulties created by differences between national judicial systems. Yet the principle can only develop fully if a high level of mutual trust exists between Member States.

D. European Arrest Warrant

The Council Framework Decision of 13 June 2002 on the European Arrest Warrant (EAW) (2002/584/JHA) has revolutionised the traditional extradition system by adopting innovative rules: limited grounds for refusal of execution, decision-making shifting from political to judicial authorities, the possibility of surrendering nationals of the executing state, the abolition of the dual criminality requirement for 32 listed offences, and clear time-limits for the execution of each EAW. Some difficulties have been encountered in the implementation of the EAW at both EU and national level, and the Framework Decision was amended once, in 2009, as regards the rules applicable to in absentia trials. Europol, Eurojust and the European Judicial Network can make an important contribution in the field of mutual legal assistance and EAW requests.

E. Approximation of legislation and establishment of minimum rules

The functioning of the EU judicial area could be undermined by differences in national criminal law. Approximation of criminal law in the EU, which can serve to overcome these difficulties — in particular with regard to serious crimes with a cross-border dimension — means adjustment to a common minimum standard, not full-scale unification, as clarified by Article 83 TFEU. Organised crime, trafficking in human beings, exploitation of children and child pornography, terrorism, financial crime (fraud, money laundering, corruption), cybercrime, environmental crime, counterfeiting, racism and xenophobia are all areas in which legal texts have been adopted or are being negotiated in order to arrive at common definitions and harmonise the level of penalties.

F. Eurojust, the European Judicial Network, the Joint Investigation Teams and the European Public Prosecutor’s Office

Eurojust is an EU body established in 2002 by a Council decision amended in December 2008. It stimulates and improves the coordination of investigations and prosecutions between competent authorities in the Member States, in particular by facilitating the provision of cross-border mutual legal assistance and the implementation of extradition requests and EAWs.

The Treaty of Lisbon provides that in order to combat crimes affecting the financial interests of the Union, the Council may establish a European Public Prosecutor’s Office (EPPO) from Eurojust, while also providing for the possibility of extending the powers of the EPPO to include serious crime having a cross-border dimension. The Treaty also envisages the possibility of establishing the EPPO by means of enhanced cooperation, if the required unanimity within the Council cannot be reached. On 17 July 2013, the Commission tabled legislative proposals to set up the EPPO and to reform Eurojust. Negotiations proved complex and finally led to the decision to establish the EPPO through enhanced cooperation; by June 2017, 20 Member States had notified their intention to join it to the Council and the Commission. Parliament gave its consent to the establishment of the EPPO on 5 October 2017. Its tasks will be to investigate, prosecute and bring to judgment the perpetrators of offences against the Union’s financial interests under newly adopted Directive (EU) 2017/1371. Moreover, Parliament and the Council are currently working on the adoption, through the ordinary legislative procedure, of the new regulation concerning Eurojust.

In June 1998 the European Judicial Network (EJN) in criminal matters was created in order to improve judicial cooperation among Member States. The EJN is aimed at helping national judges and prosecutors carry out cross-border investigations and prosecutions.

The Tampere European Council called for Joint Investigation Teams (JITs) to be set up to combat trafficking in drugs and human beings as well as terrorism. The Convention on Mutual Assistance in Criminal Matters of May 2000 also provides for the setting-up of JITs. In June 2002 the Council adopted a framework decision on the matter, and in January 2017 it adopted a resolution on a model agreement for setting up a joint investigation team (JIT), which clarifies and simplifies the previous model agreement adopted in 2010.

G. Procedural rights and victims’ rights

The right of suspects and accused persons to a fair trial is a fundamental right, protected by the Charter of Fundamental Rights and the ECHR. Following the failure of the 2004 Commission proposal for a framework decision on procedural safeguards in criminal proceedings, in November 2009 the Council adopted a roadmap for strengthening procedural rights of suspected and accused persons in criminal proceedings and invited the Commission to put forward ad hoc proposals. The roadmap identified six main areas in which legislative or other initiatives are desirable: translation and interpretation; information on rights and information about charges; legal advice and legal aid; communication with relatives, employers and consular authorities; special safeguards for suspected or accused persons who are vulnerable; and (a proposal for a Green Paper on) pre-trial detention. The Council and Parliament have subsequently adopted the relevant Directives: Directive (EU) 2010/64 on the right to interpretation and translation in criminal proceedings; Directive (EU) 2012/13 on the right to information in criminal proceedings (the so-called ‘letter of rights’); Directive (EU) 2013/48 on the right of access to a lawyer in criminal proceedings and the right to communicate upon arrest; Directive (EU) 2016/343 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings; Directive (EU) 2016/800 on procedural safeguards for children who are suspects or accused persons in criminal proceedings; and Directive (EU) 2016/1919 on legal aid for suspects and accused persons in criminal proceedings, and for requested persons in European arrest warrant proceedings. Moreover, in June 2011, the Commission published a Green Paper on the application of EU criminal justice legislation in the field of detention, and in December 2011, Parliament adopted a resolution calling for common EU standards for detention conditions. This was followed by the adoption, in October 2017, of a resolution on prisons’ systems and conditions in the EU, calling for a number of measures to improve detention conditions across the Union.

Article 82 TFEU provides a legal basis for the adoption of minimum rules concerning not only the rights of individuals in criminal proceedings, but also those of victims of crime. A first legal instrument on this matter was Framework Decision 2001/220/JHA on the standing of victims in criminal proceedings; this instrument has been replaced, following the entry into force of the Lisbon Treaty, by Directive (EU) 2012/29 establishing minimum standards on the rights, support and protection of victims of crime. Moreover, under Directive (EU) 2011/99, persons who benefit from a protection order in criminal matters issued in one Member State and wishing to move to another Member State may request a European Protection Order, which ensures that they will remain protected after their move.

H. Confiscation and freezing of assets

The ability to trace, freeze and subsequently confiscate assets generated by criminal activities is essential in order to be able to effectively combat organised crime and prevent criminals from reinvesting proceeds from crime into other illegal or legal activities. Numerous instruments have been adopted to facilitate the freezing and confiscation of assets generated by criminal activities. In particular, Directive (EU) 2014/42 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union lays down common rules for Member States with regard to freezing and confiscating the proceeds from certain crimes as well as property that appears to be derived from criminal conduct (extended confiscation). Moreover, in December 2016 the Commission proposed the adoption of a new regulation on the mutual recognition of freezing and confiscation orders. Parliament and the Council are currently working on the new proposal, whose aim is to improve cooperation between national authorities to allow swift and efficient freezing and confiscation of assets across the EU.

Role of the European Parliament  

The entry into force of the Treaty of Lisbon greatly enhanced Parliament’s role: Parliament can now co-legislate on an equal footing with the Council in almost all areas of EU criminal law. There are a few exceptions, including notably the consent procedure to be followed for establishing the EPPO. Thus, most of the legislative tools listed above have been adopted by both Parliament and the Council.

Additionally, Parliament has adopted numerous resolutions on various issues in the field of judicial cooperation in criminal matters. In May 2009, Parliament adopted a resolution (which also contained a recommendation to the Council) on the development of an EU criminal justice area. In May 2012, it adopted a resolution, based on an own-initiative report, on ‘an EU approach on criminal law’, which addressed the issues of which criteria can be used to establish whether there is a need for EU criminal law legislation, and how to ensure the coherence and quality of criminal law. In October 2013, Parliament adopted a resolution on organised crime, corruption and money laundering, based on the recommendations of its special committee on the subject (CRIM); this was followed, in October 2016, by the adoption of a new resolution on the fight against corruption. Moreover, in February 2014, Parliament adopted a resolution containing recommendations to the Commission on the review of the EAW. In July 2017, Parliament decided to set up a committee on terrorism (TERR).

Parliament is involved in evaluation and monitoring in the AFSJ, including criminal justice, as provided for in the Treaty of Lisbon. Article 70 TFEU states that ‘the European Parliament and national Parliaments shall be informed of the content and results of the evaluation’ of the implementation of the Union policies on the AFSJ by Member States’ authorities, in particular on mutual recognition. Article 85 TFEU provides for the involvement of the European Parliament and the national parliaments in ‘the evaluation of Eurojust’s activities’: such arrangements will be determined by new regulations to be adopted by Parliament and the Council under the ordinary legislative procedure.

 

Kristiina Milt