Eucrim - European Commission
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
eucrim 2011 /
THE EUROPEAN CRIMINAL LAW ASSOCIATIONS‘ FORUM
4
Focus: Sanctions
Dossier particulier: Sanctions
Schwerpunktthema: Sanktionen
The Civil Asset Forfeiture Approach to Organised Crime –
Exploring the Possibilities for an EU Model
Dr. Jon Petter Rui
The Isolation of Dutch Environmental Criminal Law
Rob de Rijck
Terrorism Lists and Freezing of Assets – Getting Behind Appearances
Réno Pijnen, LL.M, M.Phil.2011 / 4 ISSUE / ÉDITION / AUSGABE
Contents
News* Articles
European Union Sanctions
Foundations Procedural Criminal Law 153 The Civil Asset Forfeiture Approach
134 Reform of the European Union 144 Procedural Safeguards to Organised Crime – Exploring
134 Enlargement of the EU 146 Data Protection the Possibilities for an EU Model
135 Schengen 147 Victim Protection Dr. Jon Petter Rui
148 Freezing of Assets
Institutions 162 The Isolation of Dutch Environmental
136 Commission Cooperation Criminal Law
137 Court of Justice of the EU 148 Judicial Cooperation Rob de Rijck
137 OLAF 149 European Arrest Warrant
138 Europol 149 Law Enforcement Cooperation 167 Terrorism Lists and Freezing of Assets –
139 Eurojust Getting Behind Appearances
141 European Judicial Network Réno Pijnen, LL.M, M.Phil.
141 Frontex
Specific Areas of Crime / Council of Europe
Substantive Criminal Law
141 Protection of Financial Interests
142 Corruption Foundations Imprint
142 Organised Crime 151 Reform of the European
144 Environmental Crime Court of Human Rights
144 Sexual Violence 151 Other Human Rights Issues
144 Racism and Xenophobia /
Violent Extremism Procedural Criminal Law
* 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,
It is a great pleasure and honour for me to address these in- also be applied to corpora-
troductory remarks to you on the central topic of the present tions and other legal enti-
issue of eucrim: “sanctions.” Traditionally, the imposition of ties. Nevertheless, although
sanctions for certain offences by administrative authorities administrative fines can be
was considered only in special cases. But with the advent of even higher than criminal
the welfare state and, as a consequence of the expansive state ones, criminal sanctions are
intervention, sets of administrative laws and regulations were usually harsher, and they
increasingly introduced, thus establishing new duties and pro- include a component of so-
hibitions that needed for their reinforcement the provision of cial blame that is not easily
adequate responses to violations. Therefore, a great develop- found in connection with
ment in administrative penal law took place, particularly in administrative sanctions.
certain areas (inter alia the protection of the environment dur-
ing the last decades of the 20th century). Furthermore, this de- Deciding when a particular José Luis de la Cuesta
velopment coincided with the tendency to move away from offence should be dealt with
criminal law, which was consistent with promoting the use of by means of the criminal law or according to administrative
purely civil penalties or administrative sanctions in order to measures thus constitutes an important element of criminal
decriminalise less serious offences. policy. In practice, it has been proven in several cases that the
most adequate solution is promoting synergies and combin-
The enforcement of administrative sanctions is usually con- ing advantages and disadvantages of both regimes. A high
sidered to be faster, less costly, and less complex than criminal risk of overlapping and possible substantive ne bis in idem
proceedings. However, and in any case, as the International is inherent, however, to the coexistence of criminal and non-
Association of Penal Law (AIDP-IAPL) declared at its Six- criminal sanctions in the same field. The adequate regulation
teenth International Congress (Budapest 1999), the use of of the treatment of those cases in which the same act meets
non-criminal sanctions “in order to circumvent the guarantees the definition of both an administrative penal infraction and
of substantive and procedural criminal law” should always be a criminal offence – the three levels of identity characteristic
avoided. In this context, the way in which certain legal orders of bis in idem being present – is therefore essential. Priority is
have evolved in relation to confiscation – changing its juridi- generally given to the criminal investigation, paralysing the
cal nature to elude criminal procedure guarantees in order to administrative one and making the administrative procedure
cover the individual’s total assets – is not a good example and dependent on the evidence proven in the criminal process.
needs to be criticized. In fact, administrative-penal law (and, However, when the criminal proceedings are initiated after the
in general, any sanctioning law) should be always respectful of execution of the administrative sanction and it is impossible to
the principle of legality, proportionality, and other fundamen- bar the criminal prosecution itself, “full credit should be given,
tal guarantees and subjected to judicial review. in sentencing on a subsequent conviction, for any sanction al-
ready imposed in relation to the same act,” as established by
Even if the lack of resources for inspections and the absence the Fourteenth International Congress of Penal Law (Vienna
of political will and transparency in decision-making repre- 1989).
sent key obstacles to their efficient enforcement, relevant Eu-
ropean reports underline that administrative sanctions cannot
be considered less deterrent and less effective than criminal Prof. Dr. Dr. h.c. José Luis de la Cuesta
ones. In those systems in which the criminal responsibility President AIDP-IAPL, Director of the Basque Institute
of legal persons is not foreseen, administrative sanctions can of Criminology, University of the Basque Country, Spain
eucrim 4 / 2011 | 133News
Actualités / Kurzmeldungen
harmonised to some extent), according
to the Commission, it has been estab-
lished that EU criminal law measures
are required. Plans have also been made
to reflect on how criminal law could
contribute to the economic recovery by
helping tackle the illegal economy and
European Union* financial criminality. Harmonised policy
areas such as road transport, data protec-
Reported by Dr. Els De Busser (EDB), Sabrina Staats (ST),
and Cornelia Riehle (CR) tion, and environmental protection are
among those listed as areas in which the
potential role of criminal law could be
explored further.
Foundations ity of adopting measures supported by a In a next step, the Commission will
qualified majority of the Member States draft “sample language” in cooperation
has also changed the legal framework. with the EP and the Council in order
Reform of the European Union Important limits to adopting criminal to ensure consistency and coherency in
law measures are the Charter of Fun- drafting EU legislation. Additionally,
Commission Presents Strategy and damental Rights and the “emergency the Commission will set up an expert
Principles for Building an EU Criminal brake” mechanism. The latter allows a group that should assist in ensuring the
Policy Member State to refer a proposal to the implementation of EU law in national
On 20 September 2011, the European European Council if it considers the fun- criminal justice systems. (EDB)
Commission presented a communica- damental aspects of its national criminal eucrim ID=1104001
tion entitled “Towards an EU Criminal justice system to be affected by the pro-
Policy: Ensuring the effective imple- posed legislation.
mentation of EU policies through crimi- The Commission’s communication
nal law” (COM(2011) 573 final). The highlights the scope of EU criminal law Enlargement of the EU
EU institutions have been adopting legal and the principles it should abide by
instruments in the field of criminal law such as the subsidiarity principle and the Progress for Western Balkans
for many years but never defined a co- principle that criminal law should be a and Iceland but not for Turkey
herent and consistent policy in this area. last resort. With regard to these princi- The enlargement of the EU towards the
With this communication, for the first ples, the Commission distinguishes be- Balkan area continues with the Commis-
time, a genuine plan was drafted con- tween the decision on whether to adopt sion recommending open accession ne-
taining the strategy and principles the criminal law measures at all and the gotiations with Montenegro and granting
Commission intends to apply when us- decision on what kind of criminal law candidate status to Serbia on 12 October
ing criminal law as a tool to strengthen measures to adopt. 2011. Also, the Commission confirmed
the enforcement of EU policies and to In the final part of the communica- its earlier recommendation to open ac-
protect the interests of the citizens. tion, the Commission lists the policy cession negotiations with the Former
The Lisbon Treaty also introduced a areas in which criminal law measures Yugoslav Republic of Macedonia.
new take on the adoption of legal instru- might be necessary. For the financial
ments in the area of criminal law, with a sector, in the fight against fraud and the
* If not stated otherwise, the news reported in the
strengthened role for the EP and full ju- protection of the Euro against counter- following sections cover the period August – October
dicial control for the ECJ. The possibil- feiting (areas that have already been 2011.
134 | eucrim 4 / 2011Foundations
With the arrest of two remaining per- taken at the EU level. In her statement, the situation should constitute a serious
sons indicted by the ICTY, an impor- Malmström referred to the power to de- threat to public policy or to internal se-
tant step was taken in the constructive cide on the reintroduction of border con- curity at the Union or national levels.
dialogue between Serbia and the EU. trols. This power is currently still in the Border controls could be reintroduced
Additionally, the citizens of Albania hands of the Member States. However, for renewable periods of up to 30 days,
and Bosnia and Herzegovina can enjoy after the experiences with France and with a maximum duration of six months.
visa-free travel to the Schengen area Italy as well as Denmark (see eucrim Under these conditions, the decision
(since December 2010). Nevertheless, 3/2011, pp. 95-96 and eucrim 2/2011, to reintroduce border controls would
problems still exist on the level of good pp. 51-52), the Commission now pro- be taken by the Commission as an im-
governance, the rule of law, and regional poses taking this decision to the EU lev- plementing act involving the Member
cooperation. el if the right to free movement is likely States as necessary. The EP would be
Negotiations regarding Iceland’s ac- to be affected. informed of such measures.
cession are still ongoing. The main issues With a proposal of 16 November A decision to reinstall border controls
in this case are fisheries and environmen- 2010, the Commission already intro- by a Member State itself is only allowed
tal protection but the Commission is con- duced a monitoring mechanism ensuring in urgent circumstances and for a maxi-
fident that this will not hinder progress. the correct implementation of the Schen- mum of five days. An extension of this
The news is less positive with regard gen rules. The Schengen rules include a period of time would fall under the new
to accession negotiations with Turkey. common visa policy, police and judicial decision-making procedure.
In the past year, no new topics in the ne- cooperation, common rules on the return Finally, the Commission also pro-
gotiations were opened and recent ten- of irregular migrants, and the establish- posed initiating a more regular and
sions in relations with Cyprus remain a ment of common databases such as SIS. structured political dialogue between the
concern. (EDB) In accordance with this proposal, veri- European Institutions on the functioning
eucrim ID=1104002 fying whether the Schengen rules are of the Schengen area. (EDB)
implemented can be effected by means eucrim ID=1104003
of announced or unannounced visits to
a certain Member State by Commission- Veto Against Bulgaria and Romania
Schengen led teams that are joined by experts from as Schengen Members
other Member States and Frontex. Each The postponed decision on the accession
Schengen Governance Package Member State should be subjected to of Bulgaria and Romania to the Schen-
The weaknesses at the external borders, such an evaluation once every five years. gen zone ended in a veto during the JHA
which has been a recent problem within Any shortcomings can be addressed in Council of 22 September 2011 (see eu-
the Schengen zone (see eucrim 3/2011, recommendations that include a recom- crim 3/2011, p. 96). The draft Council
pp. 95-96), and the planned revision of mended action and the timeframe for its decision needed the unanimous support
the Schengen Border Code (see eucrim implemention. of all Member States in order to be put
2/2011, p. 51) were addressed by the With the current amended proposal, to vote, however the Netherlands and
Commission in two legislative propos- the Commission adds the possibility of Finland did not endorse the bid. The cur-
als presented on 16 September 2011. reintroducing internal border controls to rent Polish presidency is determined to
They consisted of a Communication on the monitoring mechanism. It was the continue pursuing an agreement.
Schengen governance – strengthening European Council of 23-24 June 2011 In the meantime, the Commission has
the area without internal border con- that called upon the Commission to draft announced the presentation of an over-
trols (COM(2011) 561 final), on the one a proposal for creation of a system ena- all assessment of the progress made by
hand, and a proposal for a Regulation bling Member States to respond to ex- Bulgaria and Romania within the frame-
on the establishment of an evaluation traordinary circumstances that put the work of the Cooperation and Verifica-
and monitoring mechanism to verify functioning of the Schengen zone at risk tion Mechanism (CVM) by the summer
the application of the Schengen acquis but still respect freedom of movement of 2012. The CVM monitors both coun-
(COM(2011) 559 final), on the other. (see eucrim 3/2011, p. 95). In exception- tries’ progress in dealing with inter alia
Both documents were presented by al circumstances and as a matter of last corruption and organised crime (see eu-
Commissioner for Home Affairs Ce- resort, where measures taken at the Un- crim 2/2010, pp. 76-84). Both the Neth-
cilia Malmström who highlighted that ion or national levels do not improve the erlands and Finland planned to wait for
Schengen’s intergovernmental approach situation, reintroducing border controls this assessment before possibly recon-
should now be shifted to a European- at internal borders with the non-compli- sidering their position, however Finland
based approach where decisions are ant Member State is allowed. However, decided to withdraw its veto on 14 No-
eucrim 4 / 2011 | 135NEWS – European Union
vember 2011. Together with most other tive” consists of two parts. On the one
Institutions
Schengen countries, Finland has decided hand, an entry/exit system would be
to support a two-phased entry of Roma- introduced to record the time, place of
nia and Bulgaria. (EDB) entry, and length of stay in an electronic Commission
eucrim ID=1104004 database. These data – presently record-
ed by stamping passports – would then Olli Rehn Appointed Vice President
Commission Presents Smart Borders be transferred to border control and im- of the Commission
Proposal migration authorities. On the other hand, On 27 October 2011, European Com-
On 25 October 2011, Commissioner for a Registered Travellers Program would mission President, Jose Manuel Barro-
Home Affairs Cecilia Malmström pre- allow frequent travellers to use simpli- so, appointed Olli Rehn, Commissioner
sented a plan to modernise travelling fied border checks at automated gates. for Economic and Monetary affairs, as
across the external borders of the EU. The initiative is part of the Schengen Vice-President of the Commission. The
As the number of travellers at European package (see p. 135 of this issue). After Vice-President assists the President on
airports is estimated to increase by 80% discussions with the EP, the Council, all matters relating to the work of the
by 2030, the introduction of smooth and and the EDPS have been held, legisla- European Council, Euro Area summits,
fast border checking procedures for reg- tive proposals will be presented in the and economic governance. Eurostat (the
ular travellers is necessary. course of 2012. (EDB) EU office that provides the EU with sta-
The so-called “Smart Borders Initia- eucrim ID=1104005 tistics on states and regions), previously
under the responsibility of Olli Rehn,
has been assigned to the European Com-
Common abbreviations missioner for Taxation, Customs, Audit
AML Anti-Money Laundering and Anti-fraud, Algirdas Šemeta. (ST)
CBRN Chemical, Biological, Radiological, and Nuclear eucrim ID=1104006
CCJE Consultative Council of European Judges
CDPC European Committee on Crime Problems Commission Strengthens Eastern
CEPEJ European Commission on the Efficiency of Justice Partnership
CEPOL European Police College On 27 September 2011, the Commission
CFT Combating the Financing of Terrorism released a communication on coopera-
CJEU Court of Justice of the European Union tion in the JHA area within the Eastern
COSI Standing Committee on Operational Cooperation on Internal Security Partnership. The Eastern Partnership
COREPER Committee of Permanent Representatives was established at the Prague Summit
DG Directorate General in May 2009 by the EU and Armenia,
EAW European Arrest Warrant Azerbaijan, Belarus, Georgia, the Re-
ECHR European Convention of Human Rights public of Moldova, and Ukraine. It pro-
ECJ European Court of Justice (one of the 3 courts of the CJEU) vides a forum for discussing, inter alia,
ECtHR European Court of Human Rights free trade and visa agreements, labour
EDPS European Data Protection Supervisor mobility, border security, and coopera-
EEAS European External Action Service
tion on environmental and climate is-
EIO European Investigation Order
sues. In the Stockholm Programme, the
EJN European Judicial Network
European Council invited the Commis-
(M)EP (Members of the) European Parliament
sion to present a plan on how to further
EPO European Protection Order
cooperation in the area of JHA with the
EPPO European Public Prosecutor Office
Eastern Partnership countries.
GRECO Group of States against Corruption
The Communication lists several ar-
ICTY International Criminal Tribunal for the former Yugoslavia
eas in which cooperation needs to be
JHA Justice and Home Affairs
JIT Joint Investigation Team
enhanced and proposes measures to be
taken in the process:
JSB Joint Supervisory Body
Data collection and analysis: provid-
MONEYVAL Committee of Experts on the Evaluation of Anti-Money Laundering
Measures and the Financing of Terrorism ing more support to national statistical
PNR Passenger Name Records institutes and research facilities in order
SIS Schengen Information System to gain more accurate data on migration-
SitCen Joint Situation Centre related issues;
136 | eucrim 4 / 2011Institutions
Legal migration: considering mobil- of five judges must always form part of welcomed OLAF’s efforts to improve its
ity agreements and further opening mi- the Grand Chamber. As to the General efficiency, but regretted that the average
gration channels for migrants from East- Court’s request to increase the number duration of investigations and initial as-
ern Partnership countries; of judges to 39 (currently 27 judges), sessments is still far too long.
Border management: supporting the Commission shares the Court’s view The Council called on OLAF to fur-
close cooperation between the Eastern that the General Court’s caseload and ther improve its planning and to opti-
Partners and FRONTEX; the current duration of proceedings call mise the use of its resources and tools.
Security: exchanging best practices in for the appointment of more judges. The As to OLAF’s investigative function, the
the area of document security; intensify- Commission even suggests introducing Council states that OLAF should allo-
ing the dialogue on fighting trafficking specialised chambers within the General cate more of its existing resources to its
in human beings and assisting the vic- Court to further increase its efficiency investigative tasks in order to increase
tims; increasing cooperation between and to appoint a Vice-President of the the number and speed of its investiga-
the Partnership countries and the respec- General Court, similar to the request tions. The Council also agreed with the
tive EU agencies in order to effectively made for the Court of Justice. Court of Auditors on the need to publish
tackle organised crime, financial crime The Commission also approves the performance statistics in a single docu-
(including terrorist financing), drug traf- Civil Service Tribunal’s request for the ment and to further clarify the role of the
ficking, and corruption; appointment of three temporary judges Supervisory Committee. (ST)
Justice and fundamental rights: moni- upon whom it could call in the event that eucrim ID=1104009
toring reform in the judiciary and the a permanent judge is prevented from at-
protection of human rights in the Part- tending court for a prolonged period of OLAF Reform – State of Play
nership countries, encouraging the adop- time. However, the Commission criti- On 12 July 2011, the European Court
tion of appropriate data protection laws, cizes a rule contained in the proposal of Auditors published an opinion on the
and introducing independent data pro- stipulating that, when the permanent proposed Regulation (COM (2011) 135)
tection supervisory authorities to guar- judge returns after a long absence, the regarding the reform of OLAF (see eu-
antee the individual’s right to protection Tribunal may decide whether or not the crim 2/2011, p. 54). Inter alia, the Court
of his data. (ST) temporary judge should continue to per- found that, due to overlapping, incoher-
eucrim ID=1104007 form his duties until his cases are com- ent, or incompatible provisions, there is
pleted. The Commission takes the view a need to simplify and consolidate the
that letting the permanent judges decide anti-fraud legislation currently in force.
on whether or not their temporary col- The Court also states that, although the
Court of Justice of the EU leagues may continue to perform their proposed Regulation aims for more in-
duties may weaken the independence of dependent control of the legality of in-
Commission Presents Opinion the temporary judges. The Commission vestigative acts, no effective control is
on ECJ Amendments therefore recommends adopting an ob- possible unless a body or a person inde-
On 30 September 2011, the Commis- jective criterion to handle situations in pendent of OLAF and equipped with the
sion published its opinion on the ECJ’s which a permanent judge returns before power to issue binding opinions carries
request for amendment of its statute as the temporary judge has completed his out this function.
presented by the Court in March 2011. cases. (ST) According to the Court, the proposed
The proposed amendments concern eucrim ID=1104008 amendments contain vague wording and
all three courts. Regarding the Court unclear key notions, resulting in a fail-
of Justice, the amendments include the ure to keep the provisions of the OLAF
establishment of the office of Vice- Regulation concise, clear, and consist-
President of the Court, modification of OLAF ent. In the Court’s opinion, the proposed
the composition of the Grand Chamber Regulation should include clear wording
as well as an increased quorum for deci- Court of Auditors on Management regarding the priority of OLAF’s core
sions by the Grand Chamber and the full of OLAF investigative function over other tasks.
Court. Overall, the Commission supports At the JHA meeting from 27-28 October Regarding OLAF’s cooperation with
the proposed amendments. However, it 2011, the Council adopted conclusions other authorities, the Court recommends
makes suggestions as to how to ensure on the Court of Auditors’ follow-up using objective criteria to identify ap-
more stability within the new enlarged audit on special report No. 1/2005 con- propriate cases for collaboration and
Grand Chamber, e.g., by introducing the cerning the management of OLAF (see equipping the Supervisory Committee
rule that three presidents of chambers eucrim 3/2011, pp. 97-98). The Council with the power to monitor the exchange
eucrim 4 / 2011 | 137NEWS – European Union
of information between OLAF and other operational and strategic information on Looking at the future of terrorism,
authorities. (ST) crime. Furthermore, the two agencies the convention saw terrorism and ex-
eucrim ID=1104010 agreed to enhance their collaborative tremism shifting to more hybrid forms.
operational efforts against transnational Facilitated by new technology and the
OLAF 2010 Annual Report organised crime and against terrorism by Internet, terrorist and extremist groups
On 19 October 2011, OLAF published endorsing operational action plans of co- are becoming more fragmented net-
its annual activity report covering the operation in five areas: maritime piracy, works that use the virtual world as a
year 2010. Overall, OLAF handled 493 counter-terrorism, security for major tool, target, and weapon. Growing im-
investigative and operational cases and international public events, cybercrime, migration flows will have an impact on
completed 691 assessments. 189 investi- and the sexual exploitation of children. terrorism and extremism, and new types
gative and operational cases were closed (CR) of terrorism such as eco-anarchism will
in 2010. With 225 new cases opened eucrim ID=1104012 come to the fore. Ultimately, the con-
that year, OLAF’s workload increased vention expects a symbiosis to develop
slightly compared to 2009 (220 new Conclusions of the European Police between organised crime and terrorism.
cases) and 2008 (204 new cases). The Chiefs Convention 2011 In reaction to these new develop-
average total duration of investigations Europol published a report, including ments, the convention suggested the fol-
and operations, including the assessment conclusions and a photo album, on the lowing actions:
phase, was nearly 28 months. Following European Police Chiefs Convention that To encourage deradicalisation and the
OLAF’s investigative results, national took place from 29 June to 1 July 2011. prevention of radicalisation; to develop
courts sentenced offenders to a cumula- The focus of the convention was the fu- the interoperability of criminal and intel-
tive 125 years of imprisonment and im- ture of organised crime and terrorism ligence databases;
posed financial penalties of nearly €1.47 (see eucrim 3/2011, pp. 99-100). To ease the administrative hurdles
billion. Regarding the future of organised that currently exist between key agen-
The report gives an outlook on chang- crime, the convention concluded that, cies (Europol, SitCen, Frontex, etc.), to
es in OLAF’s work in 2012. Inter alia, although law enforcement in the EU facilitate cooperation;
OLAF’s Director General, Giovanni has made progress in intelligence co- To change Europol’s status by giving
Kessler, has launched an internal review ordination and the joint investigation it a more ambitious role, including cer-
to improve the performance of the of- of crimes already considered a priority, tain executive powers in this particular
fice. The review is planned for comple- the reactive nature of policing and tight field. (CR)
tion by the end of 2011 and will focus budgets leave law enforcement agencies eucrim ID=1104013
on ways to simplify the procedures for insufficiently prepared for new threats.
investigations, shorten the duration of Changes in the global environment, de- Europol Review 2010
investigations, and make better use of mographic shifts, geopolitical unrest Europol has published a general report
resources. (ST) outside the EU, economic disparity, and on its activities in 2010. The report pre-
eucrim ID=1104011 the continued development of the Inter- sents an overview of Europol’s activities
net as well as related technologies are with the aim of explaining Europol’s
seen as factors likely to influence crimi- contribution to the fight against serious
nal activities such as trafficking in hu- crime and terrorism in Europe.
Europol man beings, cybercrime, and economic Besides a general chapter on Eu-
crime. Hence, the convention recom- ropol’s mission, priorities, and resourc-
Memorandum of Understanding mended taking the following actions, to es, the report contains a detailed chapter
with Interpol Against Transnational name a few: on how Europol works. The core of the
Crime To collaborate with partners in the report is the chapter on Europol’s opera-
On 12 October 2011, Europol and In- private sector, especially to create pub- tional activities and support efforts in
terpol signed a Memorandum of Under- lic-private partnerships; 2010 in relation to the different areas of
standing to extend their collaboration in To provide tools and training on new serious crime. According to the report,
the fight against transnational organised forms of crime and to raise awareness of in 2011, Europol’s support was used
crime. less visible forms of crime; most in the fields of illegal immigration,
Under the memorandum, a secure To strengthen asset recovery and fi- counterfeiting of the Euro, and heroin
communication line linking up the se- nancial investigation capabilities and to trafficking. Europol’s forensic and tech-
cure networks of both agencies shall be develop an integrated approach to strate- nical support was used in 125 cases, its
established to facilitate the exchange of gic planning at the EU level. operational analysis in 78 cases, and its
138 | eucrim 4 / 2011Institutions
financial support for operational meet- financial intelligence capability in 2012. also having been adapted to the national
ings in 60 cases and in 35 cases for in- This will include the development of the organisation of its Europol National
vestigations. Europol hosted 33 opera- Internet Crime Online System (ICROS) Unit. (CR)
tional meetings, used its mobile office as well as the strengthening of Europol’s eucrim ID=1104016
support in 31 cases, and helped with Criminal Assets Bureau (ECAB) for
the coordination of 23 cases. The report criminal assets tracing.
concludes with two chapters outlining As the fourth goal of its strategy, Eu-
Europol’s scope as well as future strat- ropol is asked to ensure that it has the Eurojust
egy and goals, underlining that Europol proper capabilities to achieve its op-
will continue to follow the goals set out erational goals. Hence, according to the Memorandum of Understanding
in its Strategy 2010-2014. (CR) work programme, Europol will continue with the European Commission
eucrim ID=1104014 to optimise its ICT support such as elec- Eurojust and the European Commission
tronic workflows, the automation of re- are currently negotiating a Memoran-
Work Programme 2012 cords, and human resource management dum of Understanding. The draft text of
At its meeting of 22-23 September 2011, in 2012. the Memorandum was sent to the Coun-
the JHA Council endorsed Europol’s The annexes to the work programme cil by the President of Eurojust, Aled
work programme for 2012. include the following: Williams, on 24 October 2011.
The work programme is Europol’s An overview of resource allocation The draft memorandum aims to fur-
annual business plan that translates the (18.2% of the total budget are allocated ther improve cooperation between Euro-
goals of Europol’s Strategy 2010-2014 to the first goal, 12.1% to the second, just and the Commission and to establish
and other relevant strategies, e.g., the In- 6.8% to the third, and 30% to the fourth mechanisms for efficient, regular, and
ternal Security Strategy for the EU (see goal); transparent contacts and the exchange of
eucrim 3/2010, p. 92), into annual objec- An overview of critical risks that information between them.
tives and provides a basis for budgetary could have a negative effect on the an- It foresees a set of general principles
planning. nual business planning and mitigating of cooperation for regular meetings, the
To fulfil the first goal of Europol’s measures; Commission’s participation at College
Strategy 2010-2014, namely to increase An overview of planned procurement meetings of Eurojust where non-oper-
its support for law enforcement opera- activities; ational strategic issues and documents
tions, Europol plans to support Member An organisational chart. are discussed, and the establishment of
States’ investigations more proactively The work programme will now be the Commission’s Directorate General
and to align operational resources with forwarded to the EP for information. for Justice as the first and single central
priority crime areas in 2012. Further- (CR) contact point for relations between the
more, Europol plans to intensify its co- eucrim ID=1104015 Commission and Eurojust.
operation efforts with the United States, With regard to consultation and in-
EU candidate and potential candidate Publication: The European Investigator formation, the memorandum foresees,
countries, Russia, and Interpol and to – Targeting Criminals across Borders on the one hand, that the Commission
strengthen its working relationships Europol has published a brochure enti- can consult Eurojust on relevant new
with the European External Action Ser- tled “The European Investigator – Tar- legislative proposals, communications,
vice (EEAS). geting Criminals across Borders.” It etc. that it intends to publish, and it may
To achieve the second goal – to de- consists of five chapters illustrating the invite Eurojust to relevant expert meet-
velop into the EU criminal information different types of assistance offered by ings. On the other hand, Eurojust is to
hub – Europol would like to finalise the Europol with regard to operational anal- consult the Commission on strategic
methodology for the new Serious and ysis, mobile office/on-the-spot support, documents such as its draft budget, an-
Organised Crime Threat Assessment forensic and technical support as well as nual working plans, etc. and to invite the
(SOCTA) in 2012 and to implement a the benefits of employing a Joint Inves- Commission to make recommendations
new Analysis Work File concept with re- tigation Team. The final chapter contains on its annual reports. Upon request,
alisable improvements in data handling information on the Member States’ Na- Eurojust shall provide the Commission
and operational utility. tional Units at Europol. with information, including statistical
For the third goal, the expansion of In addition to a generic brochure pub- data, anonymised case illustrations, and
its capabilities as an EU centre for law lished in English, individual brochures analysis of Eurojust activities in order to
enforcement expertise, Europol will are available for each Member State in enable the Commission to make recom-
continue to enhance its cybercrime and its national language, the last chapter mendations, issue opinions, or propose
eucrim 4 / 2011 | 139NEWS – European Union
initiatives. Furthermore, Eurojust and JSB in 2010. The JSB received official UK, Turkey, Switzerland, the USA, and
the Commission will inform and con- accreditation to the International Con- Dubai led to the seizure of real estate
sult each other on studies and evalua- ference of Data Protection and Privacy and other goods valued at millions of
tions dealing with Eurojust’s activities. Commissioners at the 32nd International Euros as well as the arrests of four key
Finally, Eurojust and the Commission Conference held in Jerusalem from 27- members of the criminal network.
will ensure the exchange of all relevant 29 October 2010. Between July 2007 and September
administrative documents. Activities of the JSB in 2010 in- 2011, a Dutch company, Quality Invest-
Concerning Eurojust’s relations with cluded, for instance, four meetings in ments B.V., and its international affili-
other European bodies and institutions, The Hague, translation and publication ates committed financial fraud, forgery,
the draft memorandum foresees that Eu- of the approved rules of procedures of and swindling via the so-called “Ponzi”
rojust submit the documents intended the JSB, regular contacts with Eurojust’s scheme. A Ponzi scheme is a fraudulent
for discussion to the EP, Council, or the Data Protection Officer, and the annual investment operation that pays returns
EEAS, at the same time also to the Com- inspection of Eurojust. In its report for to its investors from their own money or
mission, and that it inform the Commis- the annual inspection, the JSB expressed the money paid by subsequent investors
sion of its intention to attend meetings of its concerns about Eurojust’s Case Man- rather than from any actual profit earned
these bodies and institutions. agement System (CMS), which was not by the individual or organisation run-
Regarding Eurojust’s external rela- being fully used and about the process- ning the operation. (CR)
tions, under the draft memorandum, Eu- ing of data in manual files. Furthermore, eucrim ID=1104019
rojust agrees to inform the Commission in 2010, the JSB was involved in discus-
of any substantial developments and sions concerning the implementation of New Administrative Director Appointed
to consult the Commission on external the revised Eurojust Decision, new pos- On 14 July 2011, Klaus Rackwitz was
policy issues. Furthermore, Eurojust sibilities for Eurojust’s CMS, a secure appointed new Administrative Direc-
agrees to inform the Commission of its connection for the exchange of infor- tor at Eurojust. After his law studies in
intention to attend formal meetings of mation with OLAF, and Eurojust’s co- Germany, Mr. Rackwitz worked as a
international organisations or with rep- operation agreements with third states. judge until he took up a position as head
resentatives of third countries. The JSB further discussed the supervi- of the division for information technol-
Ultimately, the draft memorandum sion of data protection at Eurojust after ogy and reorganisation in the Ministry
foresees that Eurojust inform the Com- the entry into force of the Lisbon Treaty, of Justice of the German state North
mission on its staff development and concluding that the current system of Rhine-Westphalia. Before joining Euro-
that the Commission’s DG for Justice specialised supervision of data process- just, he worked as Senior Administrative
be invited to participate in the selection ing activities carried out by Eurojust Manager of the Prosecution Office of the
board for the recruitment of Eurojust’s should be maintained because it worked ICC. Mr. Rackwitz took up his duties on
administrative director and as an observ- efficiently. At the end of 2010, the JSB 1 October 2011. (CR)
er in the evaluation committee for his/ launched its own webpage within the eucrim ID=1104020
her probationary and/or annual perfor- Eurojust website.
mance. (CR) In 2010, the JSB received an alloca- New National Members Appointed for
eucrim ID=1104017 tion of €46,000 from the Eurojust budg- Finland, France, and the Netherlands
et. (CR) On 1 August 2011, Mr. Harri Tiesmaa
JSB Activity Report 2010 eucrim ID=1104018 was appointed National Member for
Eurojust’s Joint Supervisory Board Finland at Eurojust. Before Mr. Ties-
(JSB) has published its Activity Report Successful Action Against maa took up his position at Eurojust, he
for the year 2010. The JSB is an inde- € 175 Million Fraud worked as a prosecutor specialised in
pendent body tasked with monitoring On 27 September 2011, a joint opera- economic crime and served Eurojust as
the activities of Eurojust to ensure that tion between judicial authorities and po- Seconded National Expert between Sep-
the processing of personal data is car- lice officers in eight countries that was tember 2009 and February 2010. The
ried out in accordance with the Eurojust supported and coordinated by Eurojust former National Member for Finland,
Decision. The JSB also hears appeals was successfully conducted against a Ms. Sahavirta, will remain at Eurojust
lodged by individuals dissatisfied with worldwide criminal network committing as Deputy National Member for Finland.
Eurojust’s response to their requests to financial fraud, forgery, money launder- On 1 August 2011, Sylvie Petit-
exercise their rights as data subjects. ing, and swindling. Simultaneous house Leclair was appointed National Mem-
However, according to the Activity Re- searches and arrests at 27 locations in ber for France at Eurojust, replacing
port, no appeals were lodged with the the Netherlands, Belgium, Spain, the the retiring National Member Gérard
140 | eucrim 4 / 2011Specific Areas of Crime / Substantive Criminal Law
Loubens. Before joining Eurojust, Ms. Frontex the common name for teams deployed
Petit-Leclair served as Deputy Prosecu- during Frontex operations;
tor at the Court of Versailles and the Ap- New Regulation Adopted More detailed provisions on the op-
peals Court of Paris. On 10 October 2011, the Council adopt- erational plan;
On 1 October 2011, Marc E.F.H. van ed the new Regulation amending Coun- Reinforced tasks as regards risk anal-
Erve was appointed National Member cil Regulation (EC) No. 2007/2004 es- ysis;
for the Netherlands at Eurojust, replac- tablishing a European Agency for the Specific provisions on processing of
ing the retiring former National Mem- Management of Operational Coopera- personal data, including the possibility
ber Arend Vast. Before he took up his tion at the External Borders of the Mem- to transfer personal data to Europol or
position at Eurojust, Mr. van Erve was ber States of the European Union (see other EU law enforcement agencies on
Counsellor for Judicial Affairs and Li- eucrim 1/2010, pp. 9-10, eucrim 1/2011, persons suspected of involvement in
aison Magistrate at the Embassy of the p. 6, and eucrim 2/2011, p. 56). cross-border criminal activities, the fa-
Netherlands in Paris. (CR) On 13 September 2011, the EP had cilitation of illegal immigration activi-
eucrim ID=1104021 already given its green light – by a large ties, or human trafficking activities;
majority (431 in favour, 49 against, Reinforced tasks as regards training;
48 abstentions) – to the compromise A strengthened coordinating role as
agreement reached between Council and regards joint return operations;
European Judicial Network Parliament in June (see eucrim 2/2011, The possibility to launch technical as-
p. 56). In order to guarantee the funda- sistance projects and deploy liaison of-
Cooperation with Two Judicial mental rights of immigrants, the EP en- ficers in third countries.
Regional Platforms Begins sured that the new Regulation contain a The regulation enters into force
In their annual meetings of May and June series of provisions to ensure respect for 20 days after its publication in the Of-
2011, the Regional Judicial Platform of human rights in all Frontex actions, in- ficial Journal of the EU. (CR)
Sahel countries as well as the Platform cluding the designation of a Fundamen- eucrim ID=1104023
Justice of the Indian Ocean Commission tal Rights Officer and the establishment
expressed their willingness to establish of a Consultative Forum on Fundamen-
ties with the EJN. The intention to co- tal Rights to assist the agency’s manage-
operate with the EJN was also included ment board. The Consultative Forum Specific Areas of Crime /
in the conclusions and recommendations will include the EU Fundamental Rights Substantive Criminal Law
of their annual meetings. and Asylum Support agencies, the UN
The two Judicial Regional Platforms High Commissioner for Refugees, and Protection of Financial Interests
were established by the Terrorism Pre- NGOs specialising in this field. Un-
vention Branch and Organized Crime der the new Regulation, if fundamental Commission Report on Protection
and Illicit Trafficking Branch of the Unit- rights are breached, a mission will be of Financial Interests
ed Nations Office on Drugs and Crime suspended or terminated. Frontex will On 29 September 2011, the Commission
(UNODC), with the aim of strengthen- also have to regularly report back to the presented its annual report on the protec-
ing international cooperation in criminal EP on its fundamental rights work. tion of the EU’s financial interests. The
matters in the regions of the Sahel and Further changes to Frontex under the overall financial impact of irregularities
the Indian Ocean. The Platforms are in- new regulation include: reported by the Member States in 2010
ternational cooperation networks of fo- The possibility to buy or lease its own is estimated at €1.8 billion compared to
cal points that facilitate extradition and equipment or to buy such equipment in €1.4 billion in 2009. In this context, ir-
procedures of mutual legal assistance in co-ownership with a Member State; regularity means any infringement of an
criminal matters with the Member States A mechanism for Member States to EU provision by an economic operator
of their Platforms. The Judicial Regional second national border guards and make that has, or would have, the effect of
Platform of Sahel Countries comprises available equipment to the agency; prejudicing the EU’s financial interests.
Burkina Faso, Mali, Mauritania, and Equipment put at the disposal of the All irregularities involving more than
Niger. The Judicial Regional Platform agency will be registered in centralised €10,000 in EU resources must be re-
of the Indian Ocean Commission (IOC) records of a Technical Equipment Pool ported to the Commission. The financial
countries includes Comoros, France (TEP); impact of suspected fraud in expenditure
(Réunion), Madagascar, Mauritius, and A co-leading role in joint operations has increased from an estimated €180
the Seychelles. (CR) and pilot projects; million in 2009 to an estimated €478
eucrim ID=1104022 “European Border Guard Teams” as million in 2010.
eucrim 4 / 2011 | 141NEWS – European Union
The report shows that, due to the im- instruments to profit from the manipula- Corruption
plementation of an improved reporting tion is defined as market manipulation.
system (Irregularities Management Sys- The proposed Directive excludes certain Commission Sets Up Advisory Group
tem), Member States report irregulari- types of transactions from its scope, e.g., on Corruption
ties with greater speed and at a higher buybacks and stabilisation programmes, On 28 September 2011, the Commission
volume than in 2009. The Commission monetary policy and debt management published a decision to set up a group
notes that some Member States (France, activities, and some activities concern- of experts on corruption. The group
Germany, Spain, and UK) consistently ing emission allowances. shall advise, help, and assist the Com-
report very low suspected fraud rates To complement the proposed Direc- mission in all matters related to the EU
and asks these Member States to present tive, the Commission also proposed a Anti-Corruption Report (see eucrim
more information on their national con- Regulation on insider dealing and mar- 3/2011, p. 104), anti-corruption policies,
trol systems. Apart from that, the Com- ket manipulation. The proposed Regu- the gathering of relevant information,
mission plans to analyse the national ir- lation would serve as an update and as well as the identification of neces-
regularity and anti-fraud control systems reinforcement to the existing regulatory sary measures and actions to effectively
and present the results in the 2011 an- framework, namely the Market Abuse fight corruption throughout the EU. The
nual report. Directive (2003/6/EC). The proposal ex- group is to be composed of 17 members
Following the analysis, the Commis- tends the scope to financial instruments who will each be appointed for a period
sion highlights some measures taken in traded only on new platforms and over of 4 years. (ST)
2010 to protect the EU’s financial inter- the counter (OTC) and to multilateral eucrim ID=1104027
ests, e.g., successful joint customs oper- trading facilities (MTFs). The proposal
ations like “Sirocco”(see eucrim 4/2010, includes a number of measures to ensure MEPs Welcome Plans
p. 135) or agreements to fight the illicit that regulators have access to relevant for Anti-Corruption Report
trade in tobacco (see eucrim 4/2010, information, e.g., by extending the cur- During its meeting on 31 August 2011,
p. 135 and eucrim 3/2010, p. 90). New rent reporting of suspicious transactions the EP’s Civil Liberties Committee dis-
anti-fraud policy initiatives include to unexecuted orders and suspicious cussed the Commission’s plans to set up
the Commission Anti-Fraud Strategy OTC transactions or by granting authori- an EU Anti-Corruption Report (see eu-
(CAFS) and the OLAF reform proposal ties the right to obtain telephone and data crim 3/2011, p. 104). MEPs welcomed
(see eucrim 2/2011, p. 54). (ST) traffic records from operators as well as the Commission’s initiative and agreed
eucrim ID=1104024 granting access to private documents or that more political commitment in each
premises. (ST) Member State is needed to effectively
Commission Steps Up in Fight Against eucrim ID=1104025 fight corruption. Since the report will
Market Abuse be issued every two years only and the
On 20 October 2011, the Commission MEPs Call for Better Protection first report will not be published before
proposed a new Directive on minimum of Public Funds 2013, MEPs discussed the use of interim
criminal sanctions for insider dealing On 29 September 2011, the EP’s Civil reports to focus on the biggest prob-
and market manipulation. This is the Liberties Committee approved a reso- lems and earlier publication of the first
first time that the Commission is making lution asking the Commission to draft report. During the discussion, some of
use of its new power to enforce an EU rules ensuring that the use of EU funds is the major issues raised concern the need
policy through criminal sanctions as es- fully traceable by public authorities, citi- for better protection of whistleblowers,
tablished by the Lisbon Treaty. The new zens, and the media. MEPs see a need speedier investigations, and harmonised
Directive requires the Member States to for stronger protection of public funds rules regarding bribery of state officials
introduce criminal sanctions for insider from misuse by mafia-style organisa- in third countries. (ST)
dealing, market manipulation, as well as tions. The text specifically asks for more eucrim ID=1104028
for inciting, aiding, and abetting market attention to be paid to local authorities,
abuse. According to the proposal, in- which “are more liable to infiltration by
sider trading means that a person who organised crime.” The Committee also
has price-sensitive inside information endorses setting up a special EP com- Organised Crime
trades in related financial instruments. mittee focusing on the misuse of public
The artificial manipulation of prices funds by and the infiltration of the public Council and Commission Take on Fight
of financial instruments by, inter alia, sector and the financial system through Against New Synthetic Drugs
spreading false or misleading informa- cross-border criminal organisations. (ST) Following its announcement to present
tion and by conducting trades in related eucrim ID=1104026 more detailed plans on how to fight new
142 | eucrim 4 / 2011Specific Areas of Crime / Substantive Criminal Law
synthetic drugs (see eucrim 3/2011,
p. 105), the Commission has put for- Annual Forum on Combating Corruption in the EU 2012
ward a new approach. On 25 October Protecting the European Union’s financial interests: internal and external
2011, the Commission presented key auditing
points of their new strategy, including ERA, Trier, Germany, 16-17 February 2012
stronger EU legislation on new psycho- This sixth Annual Forum on Combating Corruption in the EU, co-financed by OLAF, will
active substances, new EU legislation to gather approximately one hundred lawyers to debate the topic of internal and external
target cross-border trafficking in drugs auditing in the context of the protection of the EU budget.
by means of criminal law, and new EU The first session will be dedicated to a general overview of the European legal frame-
laws to strengthen control over chemi- work for combating corruption, highlighting the recent EU anti-corruption and anti-
fraud strategy.
cals used for drug production.
The focus will then move towards auditing activities. Public expenditure is subject to
Following the Commission’s ap-
several means of control; therefore, it is vital to examine the role and the function of
proach, on 27 October 2011 the Council different EU and national bodies in order to guarantee an effective protection of the
adopted a European pact against syn- European Union budget against fraud or irregularities.
thetic drugs. The pact focuses on the Who are the main EU players in the field? What are the main difficulties in establishing
production of synthetic drugs, traffick- valid evidence on damages resulting from fraud and irregularities? What is the func-
tion of OLAF in this respect? Is forensic audit a necessary and appropriate tool in order
ing in synthetic drugs, the fight against
to determine whether damages occurred?
new psychoactive substances, and better
The Forum will highlight the importance of a coordinated approach by internal and
training of law enforcement authorities. external EU control bodies in order to prevent fraud and irregularities and to better
The text calls for improvements in the protect the financial interests of the European Union. The role, the power (and the lim-
exchange of information and closer co- its) of control bodies such as the European Court of Auditors, OLAF, and the European
operation between EU agencies and the Commission in complex cases will be scrutinised.
Member States. Also, new substances The conference will be held in English, German, and French. Simultaneous interpreta-
tion will be provided.
that might be harmful must be subject to
For further information, please contact Mr. Laviero Buono, Head of Section for Euro-
a risk assessment and be swiftly elimi- pean Public and Criminal Law, ERA. E-mail: lbuono@era.int.
nated from legal circulation. Member
States are encouraged to set up joint
investigation teams and cooperate with
Europol and Eurojust to track, freeze,
and confiscate proceeds of drug-related employed in the Member States, and Civil Liberties Committee Tackles
crime. (ST) establish a European fund to protect Homemade Explosives
eucrim ID=1104029 and assist victims of organised crime On 4 October 2011, the EP’s Civil
and court witnesses. Liberties Committee approved a draft
EP Resolution on Organised Crime The EP itself intends to set up a spe- Regulation to restrict the public’s access
in the EU cial committee on the spread of criminal to chemicals that can be used to make
On 25 October 2011, the EP adopted organisations that operate across bor- homemade explosives. The text includes
a resolution on countering organised ders. With respect to the Member States, restrictions on the sale of products con-
crime in the EU. the text recommends that Member States taining certain chemicals, e.g., fertilisers
Inter alia, the text calls on the strengthen their judicial authorities and or pool cleaners, if these chemicals ex-
Commission to submit new legisla- police forces, pursue a proactive ap- ceed a certain concentration. In case of
tive proposals for improving the EU’s proach towards investigation, and draw legitimate need to use these chemicals in
legislative framework, e.g., a proposal up national plans to combat organised higher concentrations, customers will be
for a Directive which contains a clear crime. The EP also suggests effectively able to obtain a license to purchase these
definition, key features, and new types implementing the European Arrest War- products. (ST)
of “organised crime” as well as a pro- rant in all Member States, regularly eucrim ID=1104031
posal for a Directive on the procedure updating agreements on judicial and
for the seizure and confiscation of the investigative cooperation with non-EU Organised Criminal Groups Engage
proceeds of crime. Among other mea- countries, and introducing an appropri- in Illegal Waste Dumping
sures, the Commission is also asked to ate system of penalties and suitable de- In June 2011, Europol published an
strengthen the role and competences tention provisions for offences relating OC-SCAN Policy Brief regarding the
of Asset Recovery Offices, draw up to organised crime. (ST) involvement of organised crime groups
a study on the investigative practices eucrim ID=1104030 in illegal waste trafficking and dis-
eucrim 4 / 2011 | 143You can also read
