Content uploaded by Paul Ponsaers
Author content
All content in this area was uploaded by Paul Ponsaers on Aug 07, 2022
Content may be subject to copyright.
EU and International Crime Control
Topical Issues
GOFS 4.indd 1 25-01-2010 17:49:03
GOFS 4.indd 2 25-01-2010 17:49:03
GofS Research Paper Series
EU a n d In t E r n a t I o n a l Cr I m E Co n t r o l
to p I C a l Is s U E s
Editors
Marc Cools
Brice De Ruyver
Marleen Easton
Lieven Pauwels
Paul Ponsaers
Gudrun Vande Walle
Tom Vander Beken
Freya Vander Laenen
Gert Vermeulen
Gerwinde Vynckier
Maklu
Antwerpen | Apeldoorn | Portland
2010
GOFS 4.indd 3 25-01-2010 17:49:03
Editors: Marc Cools, Brice De Ruyver, Marleen Easton, Lieven Pauwels, Paul Ponsaers, Gudrun Vande
Walle, Tom Vander Beken, Freya Vander Laenen, Gert Vermeulen & Gerwinde Vynckier
EU and International Crime Control. Topical Issues
Governance of Security Research Paper Series (GofS), Volume 4.
Antwerpen | Apeldoorn | Portland
Maklu
2010
222 pag. – 24 x 16 cm
ISBN 978-90-466-0328-4
D/2010/1997/8
NUR 824
© 2010 Maklu & Governance of Security Research Group
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmit-
ted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise without the
prior permission of the publisher.
Maklu Publishers
Somersstraat 13/15, 2018 Antwerpen, Belgium, info@maklu.be
Koninginnelaan 96, 7315 EB Apeldoorn, The Netherlands, info@maklu.nl
www.maklu.eu
USA & Canada
International Specialized Book Services
920 NE 58th Ave., Suite 300, Portland, OR 97213-3786, orders@isbs.com, www.isbs.com
GOFS 4.indd 4 25-01-2010 17:49:03
Maklu 5
Table of contents
“Governance of Security” – Monitoring contemporary security issues 9
Appreciating Approximation. Using common offence concepts to facilitate
police and judicial cooperation in the EU 15
Wendy De Bondt and Gert Vermeulen
1 Introduction 15
1.1 Approximation 15
1.2 Authors’ views 16
1.3 Choice of case studies 20
2 Case study 1: Mutual recognition 21
2.1 The principle of mutual recognition 21
2.2 The double criminality requirement 22
2.3 The inappropriate use of the approximation acquis 24
3 Case study 2: Europol and Eurojust 26
3.1 EU level actors and their mandate 26
3.2 The inappropriate use of the approximation acquis 27
4 Case study 3: European Criminal Records Information System 29
4.1 Exchanging criminal records information 29
4.2 Inappropriate use of the approximation acquis 29
5 EULOCS: Appreciating Approximation 30
5.1 EULOCS’ background 32
5.2 EULOCS’ added value for the case studies 33
6 Conclusion 34
7 Bibliography 35
7.1 Selected legal and policy documents 35
7.2 Literature 38
Approximation and mutual recognition of procedural safeguards of suspects
and defendants in criminal proceedings throughout the European Union 41
Gert Vermeulen and Laurens van Puyenbroeck
1 General introduction 43
2 Criminal procedure within the EU:
status questionis
45
2.1 Introduction 45
2.2 Approximation of criminal procedure vs. mutual recognition 45
2.3 The link between mutual recognition and procedural safeguards 47
2.4 Towards approximation of procedural rights of suspects and
defendants: the proposal for a framework decision 47
3 Is there need for EU action in the field of procedural rights in criminal
proceedings? 49
3.1 Introduction 49
3.2 The (in)adequacy of the ECHR framework 49
3.3 Towards a free movement of evidence: what with procedural rights? 50
GOFS 4.indd 5 25-01-2010 17:49:04
6 Maklu
EU a n d In t E r n a t I o n a l Cr I m E Co n t r o l
3.4 The breakdown of mutual recognition: mutual trust vs. the
resurrecting dominance of domestic procedures 52
4 From minimum approximation to mutual recognition of procedural rights 55
4.1 Minimum approximation of procedural rights at EU level 55
4.2 Approximation of procedural rights on a higher level 56
4.3 Towards genuine mutual recognition of procedural guarantees 60
5 Conclusion 61
6 Main references 62
Shaping the competence of Europol. An FBI perspective 63
Alexandra De Moor and Gert Vermeulen
1 Introduction 63
2 The Competence of Europol 64
2.1 Introducing: Europol 64
2.2 Extending the competence of Europol 66
2.3 Defining the competence of Europol 71
3 The Competence of Europol in Comparative Perspective 76
3.1 Introducing the FBI 76
3.2 The competence of the FBI 78
4 Conclusion 83
5 Bibliography 85
5.1 Legal and policy documents (in chronological order) 85
5.2 Literature (in alphabetical order) 89
Towards a coherent EU policy on outgoing data transfers for use in criminal
matters? The adequacy requirement and the framework decision on data
protection in criminal matters. A transatlantic exercise in adequacy 95
Els De Busser and Gert Vermeulen
1 The need for coherency 95
2 Before the framework decision 97
2.1 Limited rules on data transfers to third states or institutions 97
2.2 The adequacy requirement: not generally binding and diverse
implementation 98
3 Inadequacy based on purpose deviation 102
3.1 Purpose limitation to purpose deviation 102
3.2 Adequacy of the American level of data protection 104
3.3 Transatlantic purpose deviation 105
3.4 Inadequate transatlantic cooperation in criminal matters 108
4 The significance of the adequacy requirement in the framework decision 108
4.1 The weight of the adequacy requirement in the framework decision 109
4.2 The scope of the framework decision 110
4.3 Effects of the framework decision on existing and future provisions 111
5 The future of adequacy: from Vienna to Stockholm via Washington 112
5.1 From Vienna to the Hague 113
5.2 The transatlantic journey 113
5.3 Adequate transatlantic alliances in the future? 114
GOFS 4.indd 6 25-01-2010 17:49:04
Maklu 7
ta b l E o f Co n t E n t s
6 Conclusion: coherency with a twist 116
7 Bibliography 117
Policy and legal documents 117
Council of Europe 117
European Union 118
United States 121
Case law 122
The international private security industry as part of the European Union
security framework: a critical assessment of the French EU presidency
White Paper 123
Marc Cools, Dusan Davidovic, Hilde De Clerck and Eddy De Raedt
1 Introduction 123
2 The French EU presidency, the private security in France and the security
discourse of Nicolas Sarkozy 124
3 The genesis of the white paper by INHES and CoESS and its content 126
4 A critical assessment of the white paper 132
4.1 A critical scientific reflection 132
4.2 A hard political fact for the future 133
4.3 The visionary and brave private security industry in Europe 134
4.4 ‘Another’ critical criminological farewell 134
5 Bibliography 136
The anti money laundering complex on a crime control continuum:
perceptions of risk, power and efficacy 143
Antoinette Verhage 143
1 Introduction 143
2 Factors typifying the AML approach 145
3 Diversity of interests at the introduction of AML 147
3.1 Crime fighting and power limitation 148
3.2 Financial stability and trust 148
4 The interpretation of ‘formal
control’ in AML 150
4.1 Why private organisations? 150
4.2 The ‘banking detectives’: compliance officers and their
discretionary powers 152
5 The specificities of the phenomenon of money laundering 153
5.1 (Lack of) historical knowhow 153
5.2 Different origins of criminalisation 154
5.3 Flexibility 154
6 The autocracy of ‘risk’ within the AML complex 155
6.1 The risk-based approach in AML 155
6.2 AML as a risk for banks 157
7 Thoughts on efficacy of the AML complex 158
7.1 Effects? 158
7.2 Crime control and hence displacement? 159
8 Discussion: the place of AML on a crime control continuum 161
GOFS 4.indd 7 25-01-2010 17:49:04
8 Maklu
EU a n d In t E r n a t I o n a l Cr I m E Co n t r o l
8.1 AML as imposed regulation 161
8.2 Public-private divide 162
8.3 Knowhow and cooperation 162
9 In conclusion 163
10 Bibliography 164
Police officers’ views and fears about some criminals’ threatening reactions
to police investigations 169
Fien Gilleir
1 Introduction 169
2 Focus on the notions of ‘organized crime’ and ‘counterstrategies’ 170
2.1 The phenomenon of organized crime 170
2.2 Counterstrategies 171
3 Empirical research 174
4 Research results 175
4.1 The criminal organization 175
4.2 Violence and intimidation 176
5 Conclusion 179
6 Bibliography 180
Police torture in China and its causes 185
Wei Wu and Tom Vander Beken
1 Introduction 185
2 Police torture in criminal investigation 186
2.1 Definition 186
2.2 The phenomenon 188
2.3 Evolution of torture techniques 189
2.4 The role of police stations 189
2.5 Weak victims 190
2.6 Wrongful convictions 190
3 Explaining torture 191
3.1 The law 192
3.2 Organisation and structure 197
3.3 Culture 202
4 Discussion 204
5 Bibliography 206
Authors 217
Participating Reviewers 219
GOFS 4.indd 8 25-01-2010 17:49:04
Maklu 9
“Governance of Security” – Monitoring
contemporary security issues
The governance of security has undergone profound changes over the past thirty
years. Security has become a commodity in our mind-set and daily life and the govern-
ance aspect of security is more complex and expanded than ever before. Since 2007,
the Research Unit Governance of Security of the Ghent University Association is a
critical observer of the new developments in governance of security and addresses the
complex question regarding efficient management and control (governance) of con-
temporary security issues. The touchstones for these observations are human rights
and the implications of insecurity (policy) on human rights.
The GofS association research unit is interdisciplinary composed, consist-
ing of three research units: (1) the Research Unit Social Analysis of Security of the
Department of Criminal Law & Criminology, Faculty of Law of Ghent University
(SVA) (co-directors Marc Cools, Lieven Pauwels and Paul Ponsaers), (2) the Institute
for International Research on Criminal Policy of the Department of Criminal Law &
Criminology, Faculty of Law of Ghent University (IRCP) (co-directors Brice De Ruyver,
Tom Vander Beken and Gert Vermeulen), and (3) the Research Unit Governing and
Policing Security (GaPS) of the Department of Business Administration and Public
Administration of Ghent University College (director Marleen Easton). All members
of these research-units participate in the GofS Research Unit since 2007 (Consult:
http://www.gofs.ugent.be).
Within this interdisciplinary composed association research unit GofS develops
three key research lines. The first research line focuses on the change of the concept
of insecurity/security (the interaction between objective and subjective feelings of
insecurity and the notions of nuisance, of victimisation, of mistrust in governments,
… alongside the changing areas of social relevance which the idea of insecurity has
become associated with in late modern society (from traditional forms of criminality
to food safety, environmental threats, corruption, terrorism).
The second research line sheds light on the administrative and judicial policies
which relate to the changing paradigm of insecurity/security, paying particular atten-
tion to the problems of integration between: public versus private conduct of policy;
centralised versus decentralised conduct of policy; international, rural and local con-
duct of policy and the development of sector specific policies in contrast to integral or
integrated policy making.
The third research line concentrates on the implications for law and order and
crime prevention policy execution of this evolving paradigm of insecurity/security, with
a specific focus on the decreasing rigidity of organisational borders and competence
displacement in its implementation with reference to police forces; administrative
supervision holders; new security professions; the army; information services; inspec-
tion and detection services; private security, guarding and detection, self-regulating
agencies and active citizen participation.
The GofS Research Unit wishes to disseminate the results of the research it con-
ducts in this research area as widely as possible. It is with this intention that the
group started the GofS publication project. On the one hand, GofS will encourage
the writing of English contributions by GofS-members in the “
GofS Research Paper
GOFS 4.indd 9 25-01-2010 17:49:04
EU a n d In t E r n a t I o n a l Cr I m E Co n t r o l
10 Maklu
Series”
. On the other hand, it is the intention to occasionally publish English or Dutch
GofS research reports in the
“GofS Research Report Series”
. With this initiative the
Governance of Security Research Unit contributes to a better understanding of con-
temporary governance of security by presenting recent research results and scientific
reflections, by devising new approaches and by re-evaluating criminology’s heritage.
It implies a new openness with regard to other disciplines and to the normative ques-
tions resulting from the commission of crime and the reaction to it by actors in the
criminal justice system and beyond.
After release in early 2009 of an initial set of two volumes in the GofS Research
Paper Series, the editorial board is proud to issue a set of two more volumes, compris-
ing papers (again all reviewed by international peers, the list of which is set out in
the appendix) clustered around two well-profiled research axes. Volume 3 provides
new empirical data, theories and analyses on
Safety, Societal Problems and Citizens’
Perceptions
. Its table of contents is provided below the brief description of the papers
comprised in the current book, which constitutes Volume 4, focusing on topical issues
in
EU and International Crime Control
. The first five articles deal with intrinsic EU
criminal policy aspects, including in its transatlantic cooperation with the US. The
remaining three articles deal with anti money laundering control, counter-strategies
of criminal organisations and police torture.
January 2010, The editorial board:
Marc Cools, Brice De Ruyver, Marleen Easton, Lieven Pauwels,
Paul Ponsaers, Tom Vander Beken, Freya Vander Laenen,
Gudrun Vande Walle, Gert Vermeulen, Gerwinde Vynckier.
______
Volume 4: Topical Issues in
EU and International Crime Control
Appreciating approximation. Using common offence concepts to facilitate police and
judicial cooperation in the EU
Wendy De Bondt and Gert Vermeulen
The EU’s Justice and Home Affairs area encompasses a variety of policy areas, goals
and means to achieve those goals. One of its components is approximation, i.e. the
development of measures establishing minimum rules relating to the constituent ele-
ments of criminal acts and to penalties. Approximation can be pursued to the extent
necessary to support police and judicial cooperation. This contribution analyses the
link between approximation on the one hand and police and judicial cooperation on
the other hand. Based on three case studies, the analysis reveals that the approxima-
tion acquis is often neglected or at least not used to its full potential. The incoherence
in the use of the acquis proofs to be counterproductive and causes the progress made
to crumble away. In search for alternatives, the potential of EULOCS – the EU level
offence classification system – is part of the plea for consistency. Police and judicial
GOFS 4.indd 10 25-01-2010 17:49:04
“Go v E r n a n C E o f sE C U r I t y ” – mo n I t o r I n G C o n t E m p o r a r y s E C U r I t y I s s U E s
Maklu 11
cooperation would benefit from a well founded and well considered strategic policy
plan in which the added value of approximation is appreciated and the acquis used to
its full potential.
Approximation and mutual recognition of procedural safeguards of suspects and
defendants in criminal proceedings throughout the European Union
Gert Vermeulen and Laurens van Puyenbroeck
The underlying research question of this article basically deals with a comparison of
the possible options to take legal action at EU level in order to provide suspects and
defendants within the EU with a better procedural protection. At present measures
in this regard at EU level are primarily concerned with the introduction of common
minimum standards. It should be considered not only to continue these approximation
efforts at a wider and more specific scale (meaning the adoption of rights that go beyond
the minimum level and which take account of the specific characteristics of intrusive
investigative measures such as house search or interception of telecommunications)
but also to introduce a mutual recognition of domestic procedural safeguards. Through a
profound legal analysis the authors see such lex mitior option as a necessary counter-
balance for the free movement of evidence as currently being envisaged at EU level.
Shaping the competence of Europol. An FBI perspective
Alexandra De Moor and Gert Vermeulen
In two parts and a conclusion, this contribution elaborates on the overall-question:
How to shape the competence of Europol? The main questions concern the trigger to
extend the competence of Europol time and again and the genuine need to do so. The
non-existence of definitions of Europol-crimes leads to the result that the competence
of Europol is being interpreted in different ways throughout the EU. The authors
plea to formally recognise the readily available harmonised minimum definitions for
forms of crime both the Europol Convention and the Europol Council Decision leave
(largely) undefined. To test their thesis they turn to the US, where the FBI provides
an interesting perspective, largely confirming that federal notions and definitions,
emanating ‘federal competence worthiness’ shape the competence of the FBI – like it
should be the case for Europol.
Towards a coherent EU policy on outgoing data transfers for use in criminal matters?
The adequacy requirement and the framework decision on data protection in criminal
matters. A transatlantic exercise in adequacy
Els De Busser and Gert Vermeulen
Safeguarding the EU’s standards on personal data protection encompasses a protec-
tion for the exchange of personal data between the member states and a protection
for the exchange of personal data with third states or institutions. After all, the lat-
ter are not necessarily bound by the same data protection principles. Therefore, an
assessment of the recipient state or institution regarding the adequacy of its level
GOFS 4.indd 11 25-01-2010 17:49:04
EU a n d In t E r n a t I o n a l Cr I m E Co n t r o l
12 Maklu
of data protection is a prerequisite for guarding the EU’s data protection standards.
Nevertheless, recent developments in the EU’s legal instruments and cooperation
agreements, demonstrate a lack of a common attitude towards this prerequisite. The
exceptional position that the US holds with regard to personal data exchange with the
EU, Europol and Eurojust for the purposes of detection, investigation and prosecution
of criminal offences is particularly unusual given the differences between the EU and
the US data protection standards.
The international private security industry as part of the European Union security
framework: a critical assessment of the French EU presidency White Paper
Marc Cools, Dusan Davidovic, Hilde De Clerck and Eddy De Raedt
This article critically assesses the white paper ‘Private security and its role in European
security’ from a threefold – scientific, economic and political angle. This cannot be done
without referring to the French EU presidency in 2008, the private security in France
and the existing security discourses of the French president Sarkozy. This white paper,
as the joint work effort of the Confederation of European Security Services (CoESS)
and the Institut National des Hautes Etudes de Sécurité (INHES), is an important tool
for further criminological reflections and research. The authors briefly summarize the
white paper and describe its genesis by CoESS and INHES. It is still unclear which
new initiatives the future EU presidencies will take to the private security industry.
Nonetheless, the authors conclude with ‘another’ critical criminological view vis-à-vis
the reality of private security in the EU.
The anti money laundering complex on a crime control continuum: perceptions of
risk, power and efficacy
Antoinette Verhage
This article aims to discuss the general conclusions of a PhD research on anti-money
laundering and compliance. One of the conclusions related to the finding that the
fight against money laundering has resulted in an anti-money laundering complex, in
which public and private actors are united in the fight against crime. This public-private
approach, however, results in a number of dilemmas, mainly in the field of democratic
control and human rights. In this contribution, the author has a look at this system as
a whole, and discusses its underlying motives and theoretical assumptions. Based on
the diversity of interests represented in the system, the system has impact on several
levels, which brings about a variety of side-effects and problems. The author stresses
the specific approach that the anti money laundering policy represents, specifically in
comparison to the tackling of more traditional types of crime, and tries to position the
anti money laundering system on a continuum of crime control.
GOFS 4.indd 12 25-01-2010 17:49:04
Maklu 13
“Go v E r n a n C E o f sE C U r I t y ” – mo n I t o r I n G C o n t E m p o r a r y s E C U r I t y I s s U E s
Police officers’ views and fears about some criminals’ threatening reactions to police
investigations
Fien Gilleir
This contribution focuses on the use of counter strategies of organized crime in
Belgium. The most important aim of this article is to gain an insight in the phenom-
enon of organized crime and the way in which criminal organizations exert their influ-
ence against people who are involved in a criminal case. After all, police officers, mag-
istrates as well interpreters, witnesses, informants etc often hold a precarious position
in relation to offenders who have their own, conflicting interests. Since the nineties,
the Belgian police may make use of special police techniques in order to engage the
fight against organized crime. Whilst the competencies of the police increased, the
members of criminal organizations have developed a series of strategies in order to
reduce undesired interference of government. It is the use of these tactical counter
strategies the author focuses on. Particular attention is given to intimidation of and
violence against police officers, because of their paralyzing influence at different stages
of the criminal justice system.
Police torture in China and its causes
Wei Wu and Tom Vander Beken
In the past twenty years, issues about human rights in criminal proceedings have
attracted extensive attention from Chinese criminal justice researchers. More and
more scholars have studied the use of torture by police in criminal investigations and
openly debated on its causes. The authors review a selection of research articles on
police torture in China published in Chinese language academic journals over the past
15 years (1994-2008) and recent literature on Chinese policing and criminal procedure
in English. The article summarizes the current academic knowledge on police torture
in criminal investigations and its causes in China and concludes by suggesting some
future research directions.
______
Volume 3: New Empirical Data, Theories and Analyses on
Security,
Societal Problems and Citizens’ Perceptions
Different measures of fear of crime and survey measurement error – Wim Hardyns
and Lieven Pauwels
Mobility and distance decay at the aggregated and individual level – Stijn Van Daele
Exploring the role of exposure to offending and deviant lifestyles in explaining offend-
ing, victimisation and the strength of the association between offending and victimisa-
tion – Gerwinde Vynckier and Lieven Pauwels
GOFS 4.indd 13 25-01-2010 17:49:04
EU a n d In t E r n a t I o n a l Cr I m E Co n t r o l
14 Maklu
“Safety: everybody’s concern, everybody’s duty”? Questioning the significance of ‘ac-
tive citizenship’ and ‘social cohesion’ for people’s perception of safety – Evelien Van
den Herrewegen
Institutional distrust in Flanders. What is the role of social capital and dimensions of
discontent? – Maarten Van de Velde and Lieven Pauwels
Conceptualising the role of police culture in change strategies – Marleen Easton and
Dominique Van Ryckeghem
The view of the police on community policing in Belgian multicultural neighbour-
hoods – Marleen Easton and Paul Ponsaers
Population density, disadvantage, disorder and crime. Testing competing neighbour-
hood level theories in two urban settings – Caroline Mellgren, Lieven Pauwels and Marie
Torstensson Levander
The continuum of conflicts of interest: from corruption to clubbing and the underly-
ing risks at victimisation – Gudrun Vande Walle
Corruption as a judgement label – Arne Dormaels
Towards an integral and integrated drug policy: pearls and pitfalls – Liesbeth Vandam,
Charlotte Colman, Freya Vander Laenen and Brice De Ruyver
Explaining violence and aggression on public transport from the perpetrator’s per-
spective – Literature on typology and etiology applied – Neil Paterson, Patrick Moreau,
Gert Vermeulen and Marc Cools
Myths and reality in the history of restorative justice – Nikolaos Stamatakis and Tom
Vander Beken
GOFS 4.indd 14 25-01-2010 17:49:04
Maklu 15
Appreciating Approximation
Using common offence concepts to facilitate police
and judicial cooperation in the EU
Wendy De Bondt
Gert Vermeulen
1 Introduction
Approximation is the adoption of measures establishing minimum rules related to
the constituent elements of offences and sanctions. It aims at overcoming legal differ-
ences and creating the common ground required for cooperation. This contribution
is part of a PhD research centred around necessity and feasibility of approximation of
offences and sanctions. The central research question in this contribution is whether
and to what extent approximation of the constituent elements of criminal behaviour is neces-
sary to ensure the smooth functioning of both police and judicial cooperation in criminal
matters in the European Union. Hence, police and judicial cooperation on the one hand
and approximation on the other hand, are the lead concepts in this contribution. The
lack of coherence in European criminal policy with regard to those concepts will be
demonstrated and a remedy will be suggested.
In this introductory section, first, the concept of approximation will be introduced.
Second, the authors’ vision with regard to the discussions found in literature will be
elaborated on. Third, the choice of case studies to analyse the development of police
and judicial cooperation will be underpinned.
1.1 Approximation
First “approximation” will be introduced. Besides “approximation”, terms such as
“harmonisation”, “convergence” and “coordination” appear both in literature and legal
texts (Klip, 2009; Nelles, 2002; van der Wilt, 2002; Vander Beken, 2002; Weyembergh,
2006). Most often they are used as synonyms, but occasionally distinction is made
between them, however without sufficiently explaining the nature of the distinction
(Bantekas, 2007).
In essence, approximation is not a legal term as it is most commonly used in exact
sciences and mathematics. There it is defined as the inexact representation of something
that is still close enough to be useful. Surprisingly this definition turns out to be more
useful in the context of law than one might expect. In the context of law, Vignes defined
approximation of laws as reducing the distance between two objects (Weyembergh, 2004),
the aim of which is of course to eliminate differences that render justice systems
incompatible and thus cooperation cumbersome or even impossible.
GOFS 4.indd 15 25-01-2010 17:49:04
EU a n d In t E r n a t I o n a l Cr I m E Co n t r o l
16 Maklu
This consideration will form the basis of how approximation is perceived. For the
purpose of this contribution, approximation is defined as a technique used to over-
come legal differences and create the common ground required for cooperation.
The possibility to approximate offences and sanctions was formally introduced at
EU level in Artt. 29 and 31(e) TEU as amended by the Amsterdam Treaty. They allowed
for the adoption of measures establishing minimum rules relating to the constituent ele-
ments of criminal acts and to penalties in the fields of organised crime, terrorism and
illicit drug trafficking. To that end Art. 34 TEU introduced the framework decision.
The Union’s overall objective is to provide citizens with a high level of safety within
an area of freedom, security and justice by developing common action in the fields of
police and judicial cooperation in criminal matters and by preventing and combating
racism and xenophobia. Approximation, where necessary, is considered to be one of
the means to achieve that objective.
In literature, a series of discussions are held with regard to the effectiveness of frame-
work decisions (Tadic, 2002), other possible instruments used to approximate (Bantekas,
2007; Weyembergh, 2005a), the functions of approximation (Bosly & Van Ravenstein,
2003; Kaiafa-Gbandi, 2001; Spencer, 2002; Weyembergh, 2005b), the use of the acquis
for its purpose (Vermeulen & De Bondt, 2009) and whether or not that purpose is lim-
ited to judicial cooperation or could also encompass police cooperation (Vervaele, 2004).
Second, it is more than useful to briefly elaborate on the authors’ views before
going into the choice of case studies. However, the elaboration is limited to the two
aspects relevant to understand the discussion in this contribution, being the scope of
the approximation acquis and the combination of both police ánd judicial coopera-
tion.
1.2 Authors’ views
1.2.1 The scope of the approximation acquis
Traditionally, the scope of approximation is limited to the adoption of framework deci-
sions. Therefore the traditional acquis, the assembly of approximated offences and
sanction, is also limited to framework decisions only. That traditional “framework
decision only”-view on approximation is left in favour of a very wide and progressive
scope encompassing all relevant EU and even non-EU instruments. The following
paragraphs clarify the rationale behind this choice.
Including a variety of EU instruments
Firstly, besides framework decisions, a variety of EU instruments are eligible for inclu-
sion in the approximation acquis.
Previous paragraphs mentioned that Art. 34 TEU introduced the framework deci-
sion (FD) as the new instrument to establish minimum rules relating to the constitu-
ent elements of criminal acts and penalties. This legal basis is recalled to highlight the
traditional link between approximation and the adoption of framework decisions.
However, analysis has revealed the pursuit of approximation in other EU instru-
ments. The Union can adopt Conventions that possibly contain substantive criminal
law provisions. Examples can be found in the 1995 Europol Convention which intro-
GOFS 4.indd 16 25-01-2010 17:49:04
ap p r E C I a t I n G ap p r o x I m at I o n
Maklu 17
duced definitions of “illegal migrant smuggling”, “motor vehicle crime” and “traffic
in human beings”(OJ C 316 of 27.11.1995). More obvious are the 1995 Convention on
the Protection of the Communities’ Financial Interests (OJ C 316 of 27.11.1995) and
the 1997 Convention on the fight against corruption involving Community Officials
(OJ C 195 of 25.6.1997). Furthermore, the European Court of Justice (ECJ) has ruled
that approximation of legislation can also be pursued in first pillar instruments (Cases
176/03 and 440/05). It is argued that even though criminal law is a third pillar matter
and as such is subject to an intergovernmental decision making process, this does
not prevent the Community legislature from taking measures related to criminal law
in the first ‘supranational’ pillar when the application of effective, proportionate and
dissuasive criminal penalties is an essential measure (Dawes & Lynskey, 2008; Jans,
Sevenster, & Janssens, 2008; Kuhn, 2005; Siracusa, 2008; Somsen, 2003). The environ-
mental directive 2008/99/EC (OJ L 328 of 6.12.2008) can serve as a striking example,
adopted in the aftermath of the ECJ decisions. However, older examples such as the
2002 directive on the facilitation of unauthorised entry, transit and residence, also
exist (OJ L 328 of 5.12.2002) (Adam, Vermeulen, & De Bondt, 2008).
Based on this analysis, it is indisputable that within the European Union, substan-
tive criminal law has originated from various sorts of instruments. It has developed
rather fast and organically in the sense that it is strongly dependant on the political
climate, lacking a long term consistent policy plan (Swart, 2001; Vermeulen, 2002b,
2007; Weyembergh, 2004). When trying to assemble all the relevant provisions, analy-
sis of framework decisions alone is insufficient.
Including a variety of non-EU instruments
Secondly, including only EU instruments into the approximation acquis, fails to take
into account that substantive criminal law provisions can also originate from instru-
ments adopted at other cooperation levels, amongst which the Council of Europe
and the United Nations are the most significant. Incorporating non-EU international
instruments in the so-called EU JHA acquis, justifies this approach. This EU JHA
acquis is a list of the legal instruments, irrespective of the gremium in which they
were negotiated, to which all EU (candidate) member states must conform (http://
ec.europa.eu)(De Bondt & Vermeulen, 2009).
Because the Union itself underlined the importance of non-EU international instru-
ments through their inclusion in the EU JHA acquis, the Union may be expected to
take those instruments into account itself and use them to their full potential. This is
exactly what is stipulated in the Vienna Action plan (OJ C 19 of 23.1.1999). Point 46
(a) concludes with the requirement to take parallel work in international organisations
such as the Council of Europe into consideration.
Therefore, the approximation acquis taken into account in this contribution con-
sists not only of framework decisions, but of a series of EU and even non-EU instru-
ments, included in the EU JHA acquis.
1.2.2 Police ánd judicial cooperation in criminal matters
The strict reading of the relevant treaty provisions might suggest that approximation is
only to be sought after to facilitate judicial cooperation. Elsewhere, we have discussed
GOFS 4.indd 17 25-01-2010 17:49:04
EU a n d In t E r n a t I o n a l Cr I m E Co n t r o l
18 Maklu
how and why to improve the supporting role approximation has for judicial coop-
eration (De Bondt & Vermeulen, 2009). However, a such limitation of the supporting
role of approximation is criticized in literature. Vervaele’s view on this needs to be
endorsed: approximation should be considered a means to facilitate both police ánd
judicial cooperation (Vervaele, 2004).
However, before producing legal and policy arguments in support of including
both police ánd judicial cooperation, the development of those cooperation forms as
EU competences will be briefly recalled, in order to fully comprehend the argumenta-
tion for their combination.
Development of police and judicial cooperation as an EU competence
Police and judicial cooperation have not always been EU competences. The elimination
of borders and the subsequent elimination of border controls sparked state awareness
of the need to work closely together in order to tackle cross-border crime. Flanking
measures were needed with regard to police and judicial cooperation in criminal mat-
ters (Swart, 2001). Nevertheless, member states remained reluctant to work together.
At the time of the creation of the European Community and its internal market,
primary focus went to the economic development of Europe. The possible effects of
such an internal market on the prevalence and evolution of crime did not receive much
attention, neither did the potential problems caused by the differences in national
legislation. In the fields of security, policing and justice, member states continued to
work independently.
When the European Community developed into the European Union, this changed.
With the 1992 Maastricht Treaty (OJ C 191 of 29.7.1992), the member states took an
important step by incorporating Justice and Home Affairs into the European institu-
tional framework. Art. K.1 of the Maastricht Treaty, clarified what constituted JHA at
that time: for the purpose of achieving the objectives of the Union – in particular the
free movement of persons – member states regarded the following areas as matters of
common interest:
(1) asylum policy;
(2) rules governing the crossing by persons of the external borders of the member
states and the exercise of controls thereon;
(3) immigration policy and policy regarding nationals of third countries;
(4) combating drug addiction in so far as this is not covered by (7) to (9);
(5) combating fraud on an international scale in so far as this is not covered by (7) to
(9);
(6) judicial cooperation in civil matters;
(7) judicial cooperation in criminal matters;
(8) customs cooperation;
(9) police cooperation for the purposes of preventing and combating terrorism, unlaw-
ful drug trafficking and other serious forms of international crime, including if
necessary certain aspects of customs cooperation, in connection with the organi-
zation of a Union-wide system for exchanging information within a European
Police Office (hereafter Europol).
GOFS 4.indd 18 25-01-2010 17:49:04
ap p r E C I a t I n G ap p r o x I m at I o n
Maklu 19
This is the first time police and judicial cooperation in criminal matters appear in EU
treaties. Even where Art. K1 listed areas of common interests, it constituted only a
small step forward, as no clear objectives were set. It was not until the entry into force
of the 1997 Amsterdam Treaty (OJ C 340 of 10.11.1997), that the pillars were reshuf-
fled and the policy areas concerned more elaborated on. Some of the JHA policy areas
were shifted to the supranational first pillar and the slimmed down version of the
third pillar was renamed accordingly into “police and judicial cooperation in criminal
matters”.
The Amsterdam Treaty introduced the area of freedom, security and justice in which
the free movement of persons is assured in conjunction with appropriate measures
with respect to external border controls, asylum, immigration and the prevention and
combating of crime (Art. 2 TEU, OJ C 325 of 24.12.2002). Police and judicial coopera-
tion in criminal matters are the means to accomplish the goal and create an area of
freedom, security and justice.
Approximation in support of both police and judicial cooperation
The elaboration on want is included in police and judicial cooperation is split over
two separate articles in the TEU. Even though the Treaty provisions elaborating on
approximation are placed underneath the heading of judicial cooperation, the scope
of this evaluation is broadened to police ánd judicial cooperation. The following para-
graphs will justify the broadening of the perspective in this contribution, referring to
various policy documents and Treaty provisions.
• Legal arguments
First, Vervaele argues that it is unlikely that approximation covered in Art. 31(e) TEU
is intended to remove hurdles and ensure compatibility in rules applicable in mem-
ber states for judicial cooperation only. The observation that this specific objective
related to judicial cooperation is already covered by Art. 31(c) TEU, forms the basis
for this position (Vervaele, 2004). Furthermore, the introduction of the framework
decision is covered by Art. 34 TEU, which is not limited to judicial cooperation.
Second, in the new Art. 83(2) TFEU the competence to approximate is significantly
expanded. The possibility is introduced to approximate laws when this proves essen-
tial to ensure the effective implementation of a Union policy in an area which has
been subject to harmonisation measures. Again, notwithstanding the fact that this
provision maintains its position underneath the heading of judicial cooperation,
the link with judicial cooperation seems long gone if the function of approximation
is now to ensure effective implementation of Union policies (De Bondt & De Moor,
2009). The assumption that approximation is inextricably bound up with judicial
cooperation cannot be maintained any longer.
• Policy arguments
In addition to the above mentioned legal arguments, four policy arguments can be
produced. In the Vienna Action Plan of 3 December 1998, approximation received
a separate heading and was not merely introduced as a subsection of judicial coop-
eration. Furthermore, the members of the 2002 Working Group X pointed to the
relevance to approximate to generate sufficient mutual confidence to guarantee the
GOFS 4.indd 19 25-01-2010 17:49:04
EU a n d In t E r n a t I o n a l Cr I m E Co n t r o l
20 Maklu
effectiveness of common tools for police and judicial cooperation created by the
Union. This broadening of the scope was picked up by the drafters of the 2004 The
Hague Programme. The European Council at that time recalled that approximation
is envisioned to facilitate police and judicial cooperation in criminal matters having
a cross-border dimension. Finally, the Preamble of the 2005 FD on attacks against
information systems clarifies that its objective is to improve cooperation between
judicial and other competent authorities, including the police and other specialised
law enforcement services of the member states through approximating rules on
criminal law in the member states.
Based on this argumentation, police and judicial cooperation and approximation are the
lead concepts in this contribution. The aim of this contribution is to assess whether and
to what extent approximation of the constituent elements of criminal behaviour is necessary
to ensure the smooth functioning of both police and judicial cooperation in criminal matters
in the European Union. For such an assessment, the concept of police and judicial
cooperation needs to be made more operational.
1.3 Choice of case studies
Police and judicial cooperation as a concept is too vague and abstract to evaluate.
Therefore a set of three case studies was selected, which all have a link with approxi-
mation. The figure inserted below illustrates how the case studies relate to both police
and judicial cooperation and approximation. The following paragraphs provide a brief
context and justify the selection.
1.3.3 Mutual recognition
Mutual recognition has an indisputable symbolic value. Launched as the cornerstone
of judicial cooperation at the Tampere European Council, it is said to have induced one
GOFS 4.indd 20 25-01-2010 17:49:04
ap p r E C I a t I n G ap p r o x I m at I o n
Maklu 21
of the most radical and far-reaching reorientations in the field (Nilsson, 2006; Satzger
& Zimmermann, 2008; Swart, 2001). Growing into the overall principle in European
cooperation, mutual recognition has to play a central role when analysing police and
judicial cooperation. Therefore the first case study will focus on mutual recognition.
The link with approximation can be found in the traditional double criminality require-
ment and the abandonment thereof in mutual recognition instruments.
1.3.4 Europol and Eurojust
Undeniably important in the field of police and judicial cooperation are the EU level
actors. Both Europol and Eurojust deserve to be taken into account in this analysis.
The second case study will focus on their mandated offences, which link the EU level
actors to approximation.
1.3.5 Exchange of criminal records information
As a third case study, a specific cooperation instrument or tool was singled out.
Considering the recent evolutions with regard to the exchange of criminal records
information, an analysis of ECRIS (the European Criminal Records Information
System) was considered appropriate. Approximation is important in the labelling of
exchanged information.
2 Case study 1: Mutual recognition
This first case study will demonstrate the inappropriate use of the approximation acquis
in the context of the principle of mutual recognition. Mutual recognition instruments
abandon the double criminality requirement for a series of offences, without defining
them. In doing so, the scope of the abandonment is unclear, and the support for the
abandonment jeopardised. First a context will be provided for both the principle of
mutual recognition and the double criminality requirement. Thereafter, the inappro-
priate use of the approximation acquis will be elaborated on.
2.1 The principle of mutual recognition
In general, mutual recognition of judicial decisions is designed to facilitate coopera-
tion. To a certain extent it can be seen as the free movement of judicial decisions as it
intends to erase the influence of national borders. The mere fact that a decision was
taken by a foreign authority, becomes irrelevant for its execution. States recognise
foreign decisions as if they were their own.
In the context of cooperation in the European Union, the principle of mutual recog-
nition was first brought up in criminal matters by Jack Straw at the Cardiff European
Council in 1998, where the Council was asked to identify the scope for greater mutual
recognition of decisions of each other’s courts. The momentum grew in the course of
the following year and was used to introduce mutual recognition as a cornerstone at
the Tampere European Council in 1999 (Mitsilegas, 2006; Vermeulen, 2006). Upon the
GOFS 4.indd 21 25-01-2010 17:49:04
EU a n d In t E r n a t I o n a l Cr I m E Co n t r o l
22 Maklu
coming into force of the Lisbon Treaty, mutual recognition will have its legal basis in
Art. 82 TFEU.
Mutual recognition has the potential to bring about a very intensive – potentially
even intrusive – influence on a member states’ criminal justice system, as it encom-
passes the willingness to attach legal consequences to situations which might have
been – in some cases would certainly have been – decided upon differently by national
authorities (Mitsilegas, 2006; Satzger & Zimmermann, 2008; Swart, 2001). Therefore
in the Programme of Measures it is correctly argued that the implementation of the
principle of mutual recognition presupposes member states to have a great deal of
trust in each others’ criminal justice systems. Such trust is largely based upon a shared
commitment to the principles of freedom, democracy and respect for human rights,
fundamental freedoms and the rule of law.
Big question marks are in order when it comes to this presumption of trust. Indeed,
the yawning gap between the actual level of trust and the required level of trust often
proved to be too deep to agree upon and implement mutual recognition (De Bondt &
Vermeulen, 2009; Vermeulen, 2002a). The tragic events of 9/11 may have presented
a window of opportunity for the adoption of mutual recognition instruments (Peers,
2004), their implementation and application is far from smooth.
2.2 The double criminality requirement
National police and judicial cooperation is very complex. Differences between national
criminal justice systems make things even more complicated when attempting inter-
national cooperation. It provokes member states to stipulate conditions. A classic
condition for cooperation in double criminality. It is precisely this double criminality
requirement which links mutual recognition to the approximation acquis.
2.2.1 The background of the double criminality requirement
Double criminality – also referred to as dual criminality or duality of offences (Williams,
1991) – it is neglected in literature. The concept is often considered self-explanatory,
whereas in practice it has almost as many shapes and sizes as the instruments it is
used in.
Describing it as requiring that the behaviour constitutes an offence in both states, can-
not suffice (Alegre & Leaf, 2003; Stessens, 2000; Thomas, 1980; Van den Wyngaert,
2003; Williams, 1991).
• Isitenoughforthebehaviourtobecriminalisedinboth states? Should this be
reviewed in general or should this review go into detail searching for perfectly
matching constituent elements?
• Should factual circumstances that render offences not punishable be taken into
account or should the review be limited to the mere abstract level?
• Canelementsthatcausepreclusionofcriminalproceedings(suchaslapsoftime)
also be taken into account?
The answers to these pertinent questions differ for each of the instruments. Analysis
of legal texts and the complementing explanatory memoranda reveals the many differ-
ent approaches. The following examples illustrate these differences:
GOFS 4.indd 22 25-01-2010 17:49:04
ap p r E C I a t I n G ap p r o x I m at I o n
Maklu 23
• TheCouncilofEuropeConventionsontheTransferofProceedingsandInternational
Validity of Judgements require the act to be an offence if committed on the territory of
the requested state and the person on whom the sanctions was imposed liable to punish-
ment if he had committed the act there;
• TheEuropeanUnionConventionsonTransferofProceedingsandtheEnforcement
of sanctions require that the underlying act be an offence in the requested state if com-
mitted on its territory;
• IntheFrameworkdecisionontheEuropeanArrestWarrant,itisrequiredthatthe
act constitutes an offence under the law of the executing member state, whatever the
constituent elements or however it is described;
• IntheFrameworkdecisiononthemutualrecognitionofconscationorders,itis
required that the act constitutes an offence which permits confiscation under the law of
the executing state, whatever the constituent elements or however it is described under the
law of the issuing state;
As a conclusion it is safe to say that the more far-reaching the cooperation is, the more
far-reaching the double criminality requirement is likely to be. This is of course closely
linked to the rationale behind the introduction of the double criminality requirement:
it is a protection mechanism which aims at preventing member states from being
obliged to cooperate in the enforcement of a decision contrary to their own legal (and
criminal policy) views (Baaijens-van Geloven, 1989; Koers, 2001; Thomas, 1980).
2.2.2 The erosion of the double criminality requirement
Notwithstanding the importance of the double criminality requirement, it is consid-
ered an obstacle for smooth cooperation. Member states looked into alternatives. In
spite the of the existence of instruments which no longer upheld the double crimi-
nality requirement (e.g. Art. 3 European MLA Convention of 29 May 2000), scholars
considered it politically unlikely that the double criminality requirement would be
abandoned in European judicial cooperation (Koers, 2001).
Even though examples may have existed in 2001, the erosion of the double criminality
requirement only became truly apparent with the adoption of the new mutual rec-
ognition instruments. Abandoning double criminality is an appropriate alternative,
if the approximation acquis is properly taken into account. Today, two tracks appear
in mutual recognition instruments. The first consists of a partial abandonment of
the double criminality requirement through incorporation of a list of offence types.
The second consists of a general abandonment of the double criminality requirement,
regardless of the offence types involved.
Partial abandonment: no double criminality for the listed offence (types)
A first appearance of the abandonment of the double criminality requirement can be
found in the offence lists introduced in most mutual recognition instruments. A list of
offence types in compiled for which double criminality will no longer be tested.
Peers clearly and concisely explains how the list of offences was drawn up. At first
a list of twenty-four crimes was considered, comprising the first eleven crimes consid-
ered during the discussions of the freezing orders proposal, one crime taken from the
GOFS 4.indd 23 25-01-2010 17:49:04
EU a n d In t E r n a t I o n a l Cr I m E Co n t r o l
24 Maklu
conclusions of the Tampere European Council (high-tech crime including computer
crime), and twelve crimes taken from the Annex to the Europol Convention. By mid-
November 2001, four more items joint the list, two (motor vehicle crime, trafficking
in nuclear materials) because Europol could or did deal with them, one (rape) at the
behest of France and one (facilitation of unauthorised entry or residence) because
the Council had “recently adopted” a framework decision. [...] Finally, by the end of
November 2001, the final four crimes (arson, crimes within the jurisdiction of the
International Criminal Court, seizure of aircraft or ships and sabotage) had been
added, although no explanation was offered for this addition (Peers, 2004).
The listed offences vary slightly across instruments. The list featuring in the 2005
FD on the mutual recognition of financial penalties is unusually broad as it lists more
specific offences1 and ends with the inclusion of “all offences established by the issuing
State and serving the purpose of implementing obligations arising from instruments adopted
under the EC Treaty or under Title VI of the EU Treaty” (OJ L 78 of 22.3.2005).
General abandonment: no double criminality what so ever
The second appearance of the abandonment of the double criminality requirement is
not linked to offence types. The 2008 FD on the taking into account of prior convic-
tions, does not feature a list at all (OJ L 220 of 15.8.2008). Article 3 of the FD stipulates
that a conviction handed down in another member state shall be taken into account in
the course of new criminal proceedings. Legal effects equivalent to previous national
convictions must be attached in accordance with national law. It is amazing that una-
nimity was found to demand recognition of any conviction, which in practice includes
the recognition of a conviction for behaviour not criminalised in own national crimi-
nal law provisions.
2.3 The inappropriate use of the approximation acquis
Even though the abandonment of the double criminality requirement might seem
a logical consequence of the underlying principle of mutual recognition (Wouters &
Naert, 2004), a sufficient level of approximation to justify that abandonment is cur-
rently lacking. The following paragraphs clarify why both the abovementioned partial
and general abandonments constitute inappropriate decisions under the current legal
constellation.
2.3.1 Internal incoherence
The current practice of partially or even generally abandoning the double criminality
requirement completely disregards the approximation acquis and therefore causes
internal incoherence in European criminal policy making.
Any abandonment of the double criminality requirement is only truly sustainable
to the extent approximated offence concepts are available. Indeed, there is no longer a
1 That list includes all the offences on the equivalent EAW list, and makes a meaningful supplement
considering the context of financial penalties by introducing infringement of road traffic regulations,
smuggling, intellectual property offences, threats and acts of violence against persons, criminal dam-
age and theft.
GOFS 4.indd 24 25-01-2010 17:49:04
ap p r E C I a t I n G ap p r o x I m at I o n
Maklu 25
need to check double criminality when a criminalisation obligation has been included
in the EU JHA acquis. If the function of approximation is to facilitate and support
mutual recognition, the approximation acquis should be used to its full potential; but
not beyond that potential. Trusting other member states to have implemented the rel-
evant instruments and criminalised offences to the extent constituent elements were
agreed in approximating instruments, is already a huge step forward. This is especially
so since the implementation track record of some member states is disappointing. It
is not realistic and even unnecessary to expect member states to have mutual trust
beyond the approximation acquis. Cooperation would already significantly benefit
from the abandonment of the double criminality requirement to the extent it is justifi-
able, i.e. to the extent approximated offence concepts exist.
2.3.2 Political utopianism
The abovementioned position is reinforced by the German demarche with regard to
the 2008 FD on the European Evidence Warrant (EEW) (OJ L 350 of 30.12.2008). It is
a striking illustration of the false presumption of criminalisation of the listed offences
and the abandonment of the double criminality requirement. Germany had made
the lack of clear and common definitions and the possibility of having obligations
with regard to behaviour not criminalised under German legislation, one of their key
issues during negotiations. The compromise reached allows Germany a temporary
derogation from the provisions of the FD and make execution of an EEW subject
to verification of double criminality in the case of the offences relating to terrorism,
computer-related crime, racism and xenophobia, sabotage, racketeering and extortion
and swindling. These offences were highlighted by the German constitutional court in
its 2005 ruling on the EAW (2 BvR 2236/04), expressing its apt concern about the fact
that there is no EU wide definition of these crimes and therefore the substance of the
allegation against a suspect may not be clear to him. This German demarche would not
have been necessary, if the abandonment of the double criminality test was limited to
the approximation acquis. Building on the discussions held with regard to the EEW,
both Poland and Hungary are in favour of similar exceptions in other mutual recogni-
tion instruments. A full on return to nationally defined offences and the traditional
double criminality requirement is an important setback for the progress made over
the past years and has a negative impact on the coherent development of the EU JHA
area.
2.3.3 Legal counter indications
Abandoning the double criminality requirement without taking the approximation
acquis into account, renders some mutual recognition instruments inapplicable. The
fundamental legal difficulties that arise can be illustrated using the 2008 FD on the
application of the principle of mutual recognition to judgments and probation decisions
with a view to the supervision of probation measures and alternative sanctions (OJ L 337
of 16.12.2008) as an example. In sum, this FD regulates the enforcement of foreign
convictions. When the nature or the duration of the foreign conviction is incompat-
ible with the law of the executing state, a solution needs to be found. Art. 9 holds
the possibility to adapt the foreign conviction. Such adaptation should be carried out
GOFS 4.indd 25 25-01-2010 17:49:04
EU a n d In t E r n a t I o n a l Cr I m E Co n t r o l
26 Maklu
considering the conviction that would have been rendered in the executing state. This
is exactly where the problems begin: a conviction cannot be adapted unless the double
criminality requirement is met. How else to adapt a foreign conviction if the behaviour
is not punishable in the executing state? It proofs to be crucial from a more technical
legal perspective, to limit the obligation to automatically recognise and execute foreign
convictions to situations where the double criminality requirement is met. Hence the
suggestion to only abandon the double criminality requirement to the extent approxi-
mated offence concepts exist.
3 Case study 2: Europol and Eurojust
The second case study focuses on the mandates of Europol and Eurojust, as their man-
date links the EU level actors with approximation. Before going into the inappropri-
ate use of the approximation acquis, the composition of the mandates will be briefly
recalled.
3.1 EU level actors and their mandate
3.1.1 Europol mandate
Europol was not established out of thin air. In the course of 1971 and 1972, a number
of intergovernmental meetings were held with a focus on terrorism. Those meetings
led to the setting up of TREVI (short for Terrorisme, Radicalisme, Extremisme et
Violation International), the acknowledged forerunner of Europol, which took place
in the margins of the European Community. Unlike Europol TREVI was not an
institution, instead it operated around a system of confidential meetings where good
practices, experiences and initiatives could be discussed and exchanged. The TREVI
Working Groups and the development of the Europol Drug Unit (hereafter EDU) – the
first phase of Europol – clarify the origin of the Europol mandate (Fijnaut, 1992; Flynn,
1997; Monaco, 1995).
In 1976, five TREVI Working Groups were set up: TREVI-I was responsible for the
measures to combat terrorism; TREVI-II was responsible for police training and was
later on expanded to public order and football hooliganism; TREVI-III initially set up
to deal with civilian air travel, was redefined in 1985 to prepare the creation of the EDU.
Offence wise, it also worked on offences related to stolen vehicles, to non-cash means
of payment, to cultural property, to immigration and on armed robbery; TREVI-IV was
tasked amongst others to ensure the safety and security of nuclear installations and
transport; TREVI-V was to deal with contingency measures to respond to emergen-
cies.
It is clear that the functions set forth for EDU and Europol mirrored the ones car-
ried out by the TREVI Working Groups. On 3 January 1994 EDU started off tasked to
fight against drug-related offences (Ministerial Agreement of 2.6.1993). In December
of that year, the Essen European Council extended the mandate with trafficking in
nuclear and radioactive substances, clandestine immigration networks and trafficking
in stolen vehicles (SN 300/94). The Europol Convention was adopted on 26 July 1995
(OJ C 316 of 27.11.1995). It considers as serious international crime: crimes committed
GOFS 4.indd 26 25-01-2010 17:49:05
ap p r E C I a t I n G ap p r o x I m at I o n
Maklu 27
or likely to be committed in the course of terrorist activities against life, limb, personal free-
dom or property, unlawful drug trafficking, illegal money–laundering activities, trafficking
in nuclear and radioactive substances, illegal immigrant smuggling, trade in human beings,
motor vehicle crime and the forms of crime listed in the Annex or specific manifestations
thereof. The offences listed to define the Europol mandate are clearly inspired by the
offences connected to TREVI and EDU.
3.1.2 Eurojust mandate
To compose the Eurojust mandate, reference is made to the Europol mandate, which
is supplemented with a number of offence types. Article 4 of the Eurojust Decision
stipulates that the general competence of Eurojust shall cover the Europol offences,
supplemented by computer crime, fraud and corruption and any criminal offence affect-
ing the European Community’s financial interests, the laundering of the proceeds of crime,
environmental crime and participation in a criminal organisation within the meaning of
Council Joint Action 98/733/JHA of 21 December 1998 on making it a criminal offence to
participate in a criminal organisation in the Member States of the European Union (OJ L
63 of 6.3.2002).
When drawing up the mandates of both EU level actors, the approximation acquis
is not properly used.
3.2 The inappropriate use of the approximation acquis
3.2.1 Different meaning across instruments
First, it is regrettable that similar or even the same offence concepts have a differ-
ent meaning across instruments. The Europol list is similar to the lists in Art. 40(7)
and Art. 41(4)(a) of the Schengen Implementation Convention (SIC) (OJ L 229 of
23.9.2000). However, the offences on the lists are not interpreted in the same manner.
For the definition of the offences on the Europol list, it is explicitly stated that they
shall be assessed by the competent national authorities in accordance with the national law
of the member states to which they belong. In doing so the scope of the Europol mandate
is left to the discretion of the individual member states. This is an unfortunate choice
as no such clause can be found in the SIC. What is even more, there are strong indica-
tions that an entirely different interpretation is envisioned in SIC. When updating the
Art. 40(7) SIC list to include participation to a criminal organisation and terrorism,
references to the 1998 joint action (OJ L 351 of 29.12.1998) and the 2002 framework
decision (OJ L 164 of 22.6.2002) were included. In doing so the SIC list tends towards
the use of common offence concepts as included in the EU JHA acquis. As a result,
mirroring offence concepts have a different meaning across instruments.
Second, some of the supplementing offences listed in Article 4 of the Eurojust
Decision are seemingly redundant as they partially overlap with offences already
included in the Europol mandate. The following example can serve as an illustration.
The Europol mandated offences include “illegal money–laundering activities” defined
in the Annex as the criminal offences listed in Article 6(1) to (3) of the Council of Europe
Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime,
signed at Strasbourg on 8 November 1990. In spite of this, the European legislator con-
GOFS 4.indd 27 25-01-2010 17:49:05
EU a n d In t E r n a t I o n a l Cr I m E Co n t r o l
28 Maklu
sidered it necessary to include “laundering of the proceeds of crime” as a supplement
in the Eurojust Decision without clarifying the difference with the mirroring Europol
category. One could argue that supplements and refinements were necessary because
the scope of the Europol mandate was not crystal-clear. However, money-laundering
happens to be one of the clearer offences as it was further clarified by inserting a refer-
ence to a legal instrument. This confusion could have been avoided is the approxima-
tion acquis was used in a consistent manner throughout all instruments.
3.2.2 Incomplete and inconsistent referencing to the approximation acquis
Third, notwithstanding the choice to leave the assessment of the offences to the dis-
cretion of the individual member states, own Europol definitions were elaborated for
three of the listed offences, namely “illegal immigrant smuggling”, “motor vehicle
crime” and “traffic in human beings”. Knowing that in the initial convention a refer-
ence to the approximation acquis was included where possible – i.e. for crime connected
with nuclear and radioactive substances, illegal money–laundering activities and unlawful
drug trafficking2 – it is regrettable no such reference to the 1997 joint action (OJ L 63
of 4.3.1997) was made when updating the definition of trafficking in human beings in
1999 (OJ C 26 of 30.1.1999).
Uncertainty, vagueness and contradiction at least incoherence are the result of the
current policy to combine references to approximating instruments, with own defini-
tions and leaving the assessment of the offences to the discretion of the individual
member states. At least a debate should be considered as to whether it is appropriate
to delineate the scope of the Europol and Eurojust mandates using the approximation
acquis. In doing so the minimum definitions for the member states are deployed as
maximum definitions for the EU level actors. Such an approach would increase coher-
ence in the EU JHA area as well as be to Europol and Eurojust’s advantage as it would
facilitate communication, data exchange and data analysis. Indeed currently it can be
difficult to interpret data as member states individually assess which cases fall within
the scope of the actors’ mandates. Using strict boundaries would simplify procedures
for all parties.
In light of that argumentation, it is commendable that the Eurojust Decision refers
to the 1998 joint action to clarify what constitutes participation in a criminal organisa-
tion. It is unfortunate however that the Eurojust Decision fails to refer to the 1995
Convention on the Protection of the European Communities’ Financial interests (OJ C
316 of 27.11.1995), nor to the 1997 Convention on the fight against corruption involv-
ing Community Officials (OJ C 195 of 25.6.1997). Furthermore, it is unfortunate that
2 According to the Annex to the Europol Convention, crime connected with nuclear and radioactive sub-
stances means the criminal offences listed in Article 7(1) of the Convention on the Physical Protection
of Nuclear Material, signed at Vienna and New York on 3 March 1980, and relating to the nuclear and/
or radioactive materials defined in Article 197 of the Euratom Treaty and Directive 80/836 Euratom of
15 July 1980; Illegal money–laundering activities means the criminal offences listed in Article 6(1) to
(3) of the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Pro-
ceeds from Crime, signed at Strasbourg on 8 November 1990; Unlawful drug trafficking means the
criminal offences listed in Article 3(1) of the United Nations Convention of 20 December 1988 against
Illicit Traffic in Narcotic Drugs and Psychotropic Substances and in the provisions amending or replac-
ing that Convention.
GOFS 4.indd 28 25-01-2010 17:49:05
ap p r E C I a t I n G ap p r o x I m at I o n
Maklu 29
the reference was not updated when the 1998 joint action was repealed by the 2008 FD
on organised crime (OJ L 300 of 11.11.2008).
4 Case study 3: European Criminal Records Information System
4.1 Exchanging criminal records information
The third case study focuses on the exchange of criminal records information. The
exchange of such information is far from new. It dates back to the 1959 Council
of Europe Convention on mutual assistance in criminal matters (CETS no. 047,
Strasbourg, 20.5.1959). Article 22 of that convention deals with the exchange of
information from judicial records and stipulates that the Ministries of Justice shall
communicate information on criminal convictions and subsequent measures of other
countries nationals at least once a year (De Busser, 2008; Vermeulen, Vander Beken,
De Busser, & Dormaels, 2002). The recent development of ECRIS – the European
criminal records information system – is linked to that and has its EU roots in The
Hague Programme which says that efficient and swift exchange of information on the
criminal history of individuals constitutes an important priority (OJ C 53 of 3.3.2005)
(Jacobs & Blitsa, 2008; Marin, 2008; Stefanou & Xanthaki, 2008).
ECRIS (OJ L 93 of 7.4.2009) is set up to enable the efficient exchange of informa-
tion on previous convictions. It is annexed to the FD on the organisation and content
of the exchange of information extracted from the criminal record between member
states, itself adopted on 27 February 2009. It is based on the classification system
elaborated by Unisys and IRCP in the 2005 criminal records study and sets up a gen-
eral architecture for the electronic exchange of information, laying the foundations for
future IT developments, related to the interconnections of national criminal records.
4.2 Inappropriate use of the approximation acquis
4.2.1 Exchange of criminal records information
The development and architecture of ECRIS are not free from critique. The main
problems are the poor compatibility with the approximation acquis and the inclusion
of phenomena that do not constitute offences. These phenomena will not appear as
such in criminal record information and should therefore not appear in an informa-
tion system such as ECRIS. Three examples are singled out to illustrate the problem.
• Domestic violence is a criminological phenomenon that occurs when a family
member, partner or ex-partner attempts to physically or psychologically dominate
another. It has many forms, including physical violence, sexual abuse, emotional
abuse, intimidation, economic deprivation, and threats of violence. However, as it
is not an offence type, it should not be included as such in ECRIS.
• Shoplifting is defined as theft from a retail establishment. It might very well be
the most common way theft offences are committed, but it does not constitute a
separate offence in the sense that there is no legal difference between forms of theft
according to the location.
GOFS 4.indd 29 25-01-2010 17:49:05
EU a n d In t E r n a t I o n a l Cr I m E Co n t r o l
30 Maklu
• Theftofacar is a similar example. This time the additional specification does not
concern the location, but the object of the offence. Similarly, it should not be included
as an offence type in ECRIS.
First and foremost, the design of a criminal records information system should be
based on offences, because the criminal records system itself is based on offences.
Furthermore, it should take into account the similarities in offence types which can
be deduced from the approximation acquis. Labelling exchanged information as to
whether or not it corresponds to an approximated offence concept has the potential to
considerable facilitate the comprehensibility of such information.
4.2.2 Use of exchanged criminal records information
In addition, there is a huge difference between on the one hand informing other coun-
tries of convictions of their nationals and exchanging information to keep each other’s
criminal records system updated, and on the other hand taking those foreign convictions
into account in the course of new criminal proceedings and attaching legal effects
equivalent to previous national convictions to it. When ECRIS is intended to be used
in the mutual recognition sphere to support the taking into account of a previous
conviction, it becomes all the more important to use the approximation acquis to its
full potential, as this would significantly facilitate the interpretation of the foreign con-
viction and the attaching legal effects equivalent to previous national convictions to it.
Indicating that the foreign conviction falls within the minimum constituent elements
of offences as agreed in an approximation instrument, would not just facilitate the
taking into account of the conviction in the course of new criminal proceedings: the
lack thereof will potentially render interpretation impossible.
5 EULOCS: Appreciating Approximation
For each of the case studies, the use of offence concepts has been analysed in light
of the approximation acquis. Analysis revealed a need to carefully (re)consider the
technique of approximation, the function thereof and the use of the acquis.
When abandoning the double criminality requirement, when defining the mandate of
an EU level actor or when exchanging criminal records information, the scope thereof
needs to be clarified. It needs to be clear which offences are involved and how they are
defined. The latter part would benefit from more appreciation for the approximation
acquis. There are various possible approaches to put that into practice.
A first approach consists of inserting a direct reference to an approximating instru-
ment immediately behind the offence type. Instead of referring to terrorism, a refer-
ence would be made to terrorism as defined in the 2002 FD on combating terrorism (OJ
L 164 of 22.6.2002), amended by the 2008 FD (OJ L 330 of 9.12.2008). This approach is
not uncommon. Even though references were never included in a coherent manner,
examples are legio:
• Participationinacriminalorganisation: The Council joint action 98/733/JHA of 21
December 1998 on making it a criminal offence to participate in a criminal organi-
GOFS 4.indd 30 25-01-2010 17:49:05
ap p r E C I a t I n G ap p r o x I m at I o n
Maklu 31
sation in the Member States of the European Union is referred to in Art. 40 (7) SIC
(OJ L 229 of 23.9.2000) and Art. 4 Eurojust Decision (OJ L 63 of 6.3.2002).
• Terrorism: The Council Framework Decision 2002/475/JHA of 13 June 2002 on
combating terrorism is referred to in Art.40 (7) SIC (OJ L 229 of 23.9.2000).
• Fraud: The 1995 Convention on the Protection of the European Communities’
Financial Interests is referred to in Art.1(3) 2001 MLA Protocol (CETS no. 182
Strasbourg, 8.11.2001) and the standard offence list in the mutual recognition
instruments (e.g. OJ L 190 of 18.7.2002).
• Crime connected with nuclear and radioactive substances: The Convention on the
Physical Protection of Nuclear Material, signed at Vienna and New York on 3 March
1980, and relating to the nuclear and/or radioactive materials defined in Article 197
of the Euratom Treaty and Directive 80/836 Euratom of 15 July 1980 are referred to
in the Europol Annex (OJ C 316 of 27.11.1995).
• Illegalmoney–launderingactivities:Council of Europe Convention on Laundering,
Search, Seizure and Confiscation of the Proceeds from Crime, signed at Strasbourg
on 8 November 1990 is referred to in the Europol Annex
• Unlawful drug trafcking: The United Nations Convention of 20 December 1988
against Illicit Traffic in Narcotic Drugs and Psychotropic Substances is referred to
in the Europol Annex (OJ C 316 of 27.11.1995).
The most important benefit of this approach is the proximity of the references and
the offence concepts, whereas the most important disadvantage is the poor prospect
of being able to stand the test of time. It is important to take the rapidly changing
nature of the approximation acquis into account. The past has learnt that it is unre-
alistic to keep all references updated by repeated amending initiatives. It was already
mentioned that the references to the 1998 joint action on participating in a criminal
organisation were not updated when that joint action was repealed by the 2008 FD
on organised crime (OJ L 300 of 11.11.2008). Inserting a suffix “and all amending and
replacing provisions” is a way to by-pass this inaccuracy and avoid legal discussions. It is
exactly what has been done in the Europol Annex when defining “unlawful drug traf-
ficking”. However, such a by-pass operation is extremely user unfriendly as it expects
users to be fully updated.
A second approach consists of developing a separate reference index which brings
together and structures the entire approximating acquis. Instead of referring to indi-
vidual approximating instruments, a reference to the separate index can suffice. One
would not refer to terrorism, but to terrorism as it is defined in the separate reference index.
The most important advantages of such an approach lie in a certain consistency and a
limited amending requirement, as only the separate reference index needs to be kept
updated. In absence of an appropriate instrument to refer to, this approach has never
been deployed before. EULOCS – the EU level offence classification system – repre-
sents the practical implementation of this second approach. Its design allows it to be
used as such a separate reference index. Before elaborating on the added value of the
use of EULOCS in the analysed case studies, some background as to the development
and structure of EULOCS is provided.
GOFS 4.indd 31 25-01-2010 17:49:05
EU a n d In t E r n a t I o n a l Cr I m E Co n t r o l
32 Maklu
5.1 EULOCS’ background
In March 2007, the European Commission launched a call for tender for a “Study on
the development of an EU level offence classification system and an assessment of its
feasibility to supporting the implementation of the Action Plan to develop an EU strat-
egy to measure crime and criminal justice” – The Crime Statistics Project. The main
objective in the study’s terms of reference was to create a EULOCS for the purpose of
exchanging comparable statistical information on offences throughout the EU. The
classification system should serve as a first step towards the development of a more
comprehensive and sophisticated EU level offence classification system (Mennens, et
al., 2009). The momentum created by this study was seized to develop a more sophis-
ticated EULOCS with the potential to have an added value beyond crime statistics.
In essence, EULOCS is a list of offence labels grouped in families and sub-families
and broken down into subcategories, based on their constituent elements according
to the way these offence labels appear in legal instruments relevant for the European
Union. Grouping offence labels is inspired by the fact offence labels sometimes appear
in groups in legal instruments. Breaking down is similarly inspired by the fact some
legal instruments only refer to parts of offences. The 1997 Corruption Convention
for example, does not deal with corruption in its entirety, but deals with corruption
involving officials of the European Communities or officials of member states of
the European Union. Similarly, the 1995 Fraud Convention does not deal with fraud
in its entirety, but only with fraud affecting the financial interests of the European
Communities.
This exercises has lead to a simple but at the same time complex architecture which
forms the backbone of EULOCS.
Illustrative extract from EULOCS
0905 00 Corruption
0905 01 Offences jointly defined as corruption
0905 01 01 Active corruption in the public sector involving a EU public official
0905 01 02 Passive corruption in the public sector involving a EU public official
0905 02 Other forms of corruption
The offence labels are then combined with reference to instruments which hold
approximated offence definitions and the definitions themselves. As a result, EULOCS
is the ideal reference instrument to use if one wants to limit certain applications to
behaviour that is criminalised in all member states. The idea is to keep one separate
reference index updated which can then be referred to in various legal instruments
(Vermeulen & De Bondt, 2009).
GOFS 4.indd 32 25-01-2010 17:49:05
ap p r E C I a t I n G ap p r o x I m at I o n
Maklu 33
5.2 EULOCS’ added value for the case studies
5.2.1 Facilitating cooperation whilst clarifying mutual recognition obligations
The first case study illustrated that the obligations arising from mutual recognition
instruments are usually insufficiently clarified: the double criminality test is aban-
doned for either a list of offence types or simply for all offence types. This approach
presupposes a degree of mutual understanding and mutual trust with regard to those
offences which is not available today. Failing to make reference to an agreed minimum
definition to clarify the extent to which the double criminality test is abandoned and/
or leaving the assessment of the offence and thus the scope of the abandonment of the
double criminality test to the discretion of the national authorities, is a considerable
concern for some member states. The German demarche with regard to the EEW is a
striking example of the confidence problem arisen from the abandonment of the dou-
ble criminality test. Considering the efforts and progress made to establish minimum
rules related to constituent elements and penalties, the double criminality test can be
abandoned in mutual recognition instruments, but only to the extent approximated
offence concepts exist. Indeed, the test is no longer meaningful in cases concern-
ing offences for which minimum definitions are agreed upon in the EU JHA acquis.
Offences falling outside the approximation acquis should remain subject to a double
criminality test.
The matter deserves in-depth debate as to the desirability to limit the abandonment
of a double criminality requirement to the approximated offence concepts. EULOCS
can be an interesting tool to refer to in mutual recognition instruments. Three advan-
tages can be highlighted.
First, it would be a welcome clarification of the extent to which the double crimi-
nality requirement is abandoned.
Second, inserting a reference to EULOCS – as opposed to a reference to an agreed
minimum definition in a specific legal instrument – has the additional advantage of
being able to stand the test of time. Above we have already pointed to the need to take
the dynamic and rapidly changing nature of the JHA field into account. In that respect
a reference to a generic reference index such as EULOCS would get priority over a
static reference to a specific legal instrument.
Third, a standard reference to EULOCS in all instruments would considerably
decrease the risk of internal incoherence or even incompatibility between instru-
ments.
5.2.2 Facilitating cooperation whilst clarifying the scope of mandates
The second case study discussed the use of offence concepts to define the mandates
of Europol and Eurojust. The choice to leave the assessment of the offences to the
discretion of the national authorities, gives way for confusion and unnecessary com-
plications. Furthermore, some of the offence categories are specified via the inclusion
of a reference to an agreed minimum definition, whilst others are specified via the
creation of an own internal definition. Most of the offences however are left open.
Clarifying the scope of the mandated offences via reference to agreed minimum
definitions, would facilitate the work of EU level actors. A reference to EULOCS would
GOFS 4.indd 33 25-01-2010 17:49:05
EU a n d In t E r n a t I o n a l Cr I m E Co n t r o l
34 Maklu
simplify communication, data sharing and data analysis. Indeed currently it can be
difficult to interpret data as member states individually assess which cases fall within
the scope of the mandates. Using strict boundaries would simplify procedures for all
parties.
5.2.3 Facilitating cooperation whilst clarifying the meaning of exchanged information
Criminal records information is not exchanged merely to inform one another. The
2008 FD on the application of the principle of mutual recognition to judgments and proba-
tion decisions with a view to the supervision of probation measures and alternative sanc-
tions (OJ L 337 of 16.12.2008) proves member states are ready to move ahead and use
foreign criminal records information as if it were their own. This of course requires
member states to fully grasp the nature of foreign convictions. From that perspective
it becomes more and more important to fully exploit the advantages approximation
can bring.
The architecture of the information system should be linked to the approxima-
tion acquis and exchanged information should be tagged as to whether it concerns a
conviction based on an agreed minimum definition or a conviction that still needs to
be tested for double criminality.
6 Conclusion
Police and judicial cooperation has passed the stage of infancy, but is far from fully
grown. The current chaotic development reveals the lack of a long-term policy plan.
Three case studies have illustrated how the use of approximated offence concepts can
facilitate cooperation. Therefore, during the coming maturing process, more attention
should be paid to internal coherence between the development of police and judicial
cooperation on the one hand, and approximation on the other hand.
The creation of EULOCS is mainly a plea for coherence and internal consistence
in the EU JHA area, which deserves in-depth debate. Police and judicial cooperation
would benefit from a well founded and well considered strategic policy plan in which
the added value of approximation is appreciated more and the acquis used to its full
potential.
The authors welcome the initiative of the European Commission to launch a Study
on the future institutional and legal framework of judicial cooperation in criminal mat-
ters in the EU. It is encouraging to find that the Study is to provide the Commission
with an independent, long-term strategic view to ensure consistency in future policy
making (tender n° JLS/2009/JPEN/PR/0028/E4). Let us hope the subject matter of
this paper will not be ignored during the discussions on the Stockholm Programme,
detailing the future of cooperation in the area of freedom, security and justice.
GOFS 4.indd 34 25-01-2010 17:49:05
ap p r E C I a t I n G ap p r o x I m at I o n
Maklu 35
7 Bibliography
7.1 Selected legal and policy documents
Action Plan to combat organized crime (Adopted by the Council on 28 April 1997), (OJ
C 251 of 15.8.1997)
Convention drawn up on the basis of Article K.3 (2) (c) of the Treaty on European Union
on the fight against corruption involving officials of the European Communities or officials
of member states of the European Union (OJ C 195 of 25.6.1997).
Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the
protection of the European Communities’ financial interests (OJ C 316 of 27.11.1995).
Convention implementing the Schengen Agreement of 14 June 1985 between the Governments
of the States of the Benelux Economic Union, the Federal Republic of Germany and the
French Republic on the gradual abolition of checks at their common borders (OJ L 229 of
23.9.2000).
Convention of 26 July 1995 on the establishment of a European Police Office (Europol) (OJ
C 316 of 27.11.1995).
Council of Europe (1959), Convention on Mutual Assistance in Criminal Matters (CETS
no. 047, Strasbourg, 20.5.1959).
Council of Europe (2001) Second Additional Protocol to the European Convention on
Mutual Assistance in Criminal Matter (CETS no. 182 Strasbourg, 8.11.2001).
Council of Europe (2005), Council of Europe Convention on the Prevention of Terrorism
(CETS no. 196, Warsaw, 16.5.2005).
Council of the European Union (1996), Joint action of 15 July 1996 adopted by the Council
on the basis of Article K.3 of the Treaty on European Union, concerning action to combat
racism and xenophobia (OJ L 185 of 24.7.1996).
Council of the European Union (1996), Joint action of 17 December 1996 adopted by
the Council on the basis of Article K.3 of the Treaty on European Union concerning the
approximation of the laws and practices of the Member States of the European Union
to combat drug addiction and to prevent and combat illegal drug trafficking (OJ L 342,
31.12.1996).
Council of the European Union (1997), Joint action of 24 February 1997 adopted by the
Council on the basis of Article K.3 of the Treaty on European Union concerning action
to combat trafficking in human beings and sexual exploitation of children (OJ L 63 of
4.3.1997).
Council of the European Union (1998), Joint action of 21 December 1998 adopted by
the Council on the basis of Article K.3 of the Treaty on European Union, on making it
a criminal offence to participate in a criminal organisation in the Member States of the
European Union (OJ L 351, 29.12.1998).
GOFS 4.indd 35 25-01-2010 17:49:05
EU a n d In t E r n a t I o n a l Cr I m E Co n t r o l
36 Maklu
Council of the European Union (1998), Joint action of 22 December 1998 adopted by the
Council on the basis of Article K.3 of the Treaty on European Union, on corruption in the
private sector (OJ L 358, 31.12.1998).
Council of the European Union (1998), Joint action of 3 December 1998 adopted by the
Council on the basis of Article K.3 of the Treaty on European Union, on money launder-
ing, the identification, tracing, freezing, seizing and confiscation of instrumentalities and
the proceeds from crime (OJ L 333, 9.12.1998).
Council of the European Union (1999), Council Decision of 3 December 1998 supple-
menting the definition of the form of crime ‘traffic in human beings’ in the Annex to the
Europol Convention (OJ C 26 of 30.1.1999)
Council of the European Union (2002), Council Regulation (EC, Euratom) No
1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget
of the European Communities (OJ L 248 of 16.9.2002).
Council of the European Union (2002), Council Directive 2002/90/EC of 28 November
2002 defining the facilitation of unauthorised entry, transit and residence (OJ L 328 of
5.12.2002).
Council of the European Union (2002), Council Framework Decision of 13 June 2002 on
combating terrorism (OJ L 164 of 22.6.2002).
Council of the European Union (2002), Council framework decision of 13 June 2002, on
the European Arrest Warrant and the surrender procedures between Member States (OJ
L 190 of 18.7.2002).
Council of the European Union (2002), Council Framework Decision 2002/946/JHA of
28 November 2002 on the strengthening of the legal framework to prevent the facilitation
of unauthorised entry, transit and residence (OJ L 328 of 5.12.2002).
Council of the European Union (2002), Decision of 28 February 2002 setting up Eurojust
with a view to reinforcing the fight against serious crime (OJ L 63 of 6.3.2002).
Council of the European Union (2004), Council Regulation (EC) No 2007/2004 of
26 October 2004 establishing a European Agency for the Management of Operational
Cooperation at the External Borders of the Member States of the European Union (OJ L
349 of 25.11.2004).
Council of the European Union (2005), Council Decision 2005/876/JHA of 21 November
2005 on the exchange of information extracted from the criminal record (OJ L 322 of
9.12.2005).
Council of the European Union (2005), Council Framework Decision 2005/214/JHA of
24 February 2005 on the application of the principle of mutual recognition to financial
penalties (OJ L 78 22.3.2005).
Council of the European Union (2008) Council Framework Decision 2008/675/JHA of
24 July 2008 on taking account of convictions in the Member States of the European
Union in the course of new criminal proceedings (OJ L 220 of 15.8.2008)
GOFS 4.indd 36 25-01-2010 17:49:05
ap p r E C I a t I n G ap p r o x I m at I o n
Maklu 37
Council of the European Union (2008), Council Framework Decision 2008/841/JHA of
24 October 2008 on the fight against organised crime, (OJ L 300 of 11.11.2008).
Council of the European Union (2008), Council Framework Decision amending
Framework Decision 2002/475/JHA on combating terrorism (OJ L 330 of 9.12.2008).
Council of the European Union (2008), Council Framework Decision 2008/978/JHA
of 18 December 2008 on the European evidence warrant for the purpose of obtaining
objects, documents and data for use in proceedings in criminal matters (OJ L 350 of
30.12.2008).
Council of the European Union (2008), Directive 2008/99/EC of the European Parliament
and of the Council of 19 November 2008 on the protection of the environment through
criminal law (OJ L 328 of 6.12.2008)
Council of the European Union (2009), Council Decision 2009/316/JHA of 6 April 2009
on the establishment of the European Criminal Records Information System (ECRIS) in
application of Article 11 of Framework Decision 2009/315/JHA (OJ L 93 of 7.4.2009).
Council of the European Union (2009), Council Framework Decision 2009/315/JHA
of 26 February 2009 on the organisation and content of the exchange of information
extracted from the criminal record between Member States (OJ L 93 of 7.4.2009).
European Commission (1999), Commission Decision of 28 April 1999 establishing the
European Anti-Fraud Office (Olaf), (OJ L136 of 31.5.1999)
European Commission (2008) Acquis of The European Union Consolidated and completely
revised new version Cut-off-date: October 2008 (http://ec.europa.eu/justice_home/
doc_centre/intro/docs/jha_acquis_1008_en.pdf)
European Council (1992), Edinburgh Presidency Conclusions, (SN 456/92).
European Council (1994), Essen Presidency Conclusions, (SN 300/94).
European Council (1996), Dublin Presidency Conclusions (SN 300/96).
European Council (1999), Tampere Presidency Conclusions, (SN 200/1/99 REV 1).
European Council (2004), The Hague Programme: strengthening freedom, security and
justice in the European Union (OJ C 53/11 of 3.3.2005).
High Level Group on Organised Crime (1997), Letter of 2 May 1997 to the Chairman of
the Intergovernmental Conference Representatives Group (CONF 3903/97)
Treaty establishing a Constitution for Europe, (OJ C 310 of 16.12.2004).
Treaty of Amsterdam (OJ C 340 of 10.11.1997).
Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the
European Community, signed at Lisbon, 13 December 2007, (OJ C 306 of 17.12.2007).
Treaty on European Union (Maastricht treaty), (OJ C 191 of 29.07.1992).
Treaty on the Functioning of the European Union, (OJ C 155 of 9.5.2008).
GOFS 4.indd 37 25-01-2010 17:49:05
EU a n d In t E r n a t I o n a l Cr I m E Co n t r o l
38 Maklu
United Nations (2000), Convention against Transnational Organized Crime (UNTS no.
39574, New York, 15.11.2000).
Working group X “Freedom, Security and Justice” (2002) Final report Working Group X
“Freedom, Security and Justice of 2.12.2002” (CONV 426/02)
7.2 Literature
Adam, S., Vermeulen, G., & De Bondt, W. (2008). Corporate Criminal Liability and the
EC/EU: Bridging Sovereignty Paradigms for the sake of an Area of Justice, Freedom
and Security. In S. Adam, N. Colette-Basecqz & M. Nihoul (Eds.), La responsabilité
pénal des personnes morales en Europe. Corporate Criminal Liability in Europe (pp. 373-
432). Brussels: La Charte.
Alegre, S., & Leaf, M. (2003). Chapter 3: Double Criminality. In S. Alegre & M. Leaf
(Eds.), European Arrest Warrant – A solution ahead of its time? (pp. 34-52): JUSTICE
– advancing justice, human rights and the rule of law.
Baaijens-van Geloven, Y. (1989). Overdracht van Strafvervolging (Vol. 2). Nijmegen: Ars
Aequi Libri.
Bantekas, I. (2007). The Principle of Mutual Recognition in EU Criminal Law. European
Law Review, 32(3), 365.
Bosly, S., & Van Ravenstein, M. (2003). L’Harmonisation des incriminations. In D.
Flore, S. Bosly, H. Brulin, S. Claisse, S. de Biolley, M.-H. Descamps, J.-S. Jamart &
M. Van Ravenstein (Eds.), Actualités de droit pénal européen (pp. 19-58). Brugge: La
charte.
Dawes, A., & Lynskey, O. (2008). The Ever-longer Arm of EC law: The Extention of
Community Competence into the Field of Criminal Law. Common Market Law
Review, 45, 131.
De Bondt, W., & De Moor, A. (2009). De Europese Metamorfose? De implicaties van
het Verdrag van Lissabon voor het Europees Strafrecht. Panopticon, 1, 31.
De Bondt, W., & Vermeulen, G. (2009). Justitiële samenwerking en harmonisatie. Over
het hoe en het waarom van een optimalisering in het gebruik van verwezenlijkingen
op vlak van harmonisatie bij de uitbouw van justitiële samenwerking. Panopticon,
6.
De Busser, E. (2008). A European Criminal Records Database: An integrated model. In
C. Stefanou & H. Xanthaki (Eds.), Towards a European Criminal Record (pp. 336-354).
Cambridge: Cambridge University Press.
Fijnaut, C. (1992). Policing Western Europe: Interpol, Trevi and Europol.
Flynn, V. (1997). Europol – A Watershed in EU Law Enforcement Cooperation? In G.
Barrett (Ed.), Justice Cooperation in the European Union: The Creation of a European
Legal Space (pp. 79-113). Dublin: Institute of European Affairs.
GOFS 4.indd 38 25-01-2010 17:49:05
ap p r E C I a t I n G ap p r o x I m at I o n
Maklu 39
Jacobs, J. B., & Blitsa, D. (2008). Sharing Criminal Records: The United States, the
European Union and Interpol compared. Loyola of Los Angeles International and
Comparative Law Review, 30, 125.
Jans, J. H., Sevenster, H. G., & Janssens, J. M. P. (2008). Environmental spill-overs into
general community law. Fordham International Law Journal, 31, 1360.
Kaiafa-Gbandi, M. (2001). The Development towards Harmonization within Criminal
Law in the European Union. European Journal of Crime, Criminal Law and Criminal
Justice, 9(4), 239.
Klip, A. (2009). European Criminal Law. An integrative Approach (Vol. 2). Antwerp –
Oxford – Portland: Intersentia.
Koers, J. (2001). Nederland als verzoekende staat bij de wederzijdse rechtshulp in strafza-
ken. Achtergronden, grenzen en mogelijkheden. Nijmegen: Wolf Legal Publishers.
Kuhn, S. (2005). EU Criminal Law slips in the back door. European Lawyer, 54, 70.
Marin, L. (2008). Towards a European Criminal Record. Common Market Law Review,
45, 1793.
Mennens, A., De Wever, W., Dalamanga, A., Kalamara, A., Kaslauskaite, G.,
Vermeulen, G., et al. (2009). Developing an EU level offence classification system: EU
study to implement the Action Plan to measure crime and criminal justice (Vol. 34).
Antwerp – Apeldoorn – Portland: Maklu.
Mitsilegas, V. (2006). The constitutional implications of mutual recognition in crimi-
nal matters in the EU. Common Market Law Review, 43, 1277.
Monaco, F. R. (1995). Europol: the culmination of the European Union’s international
police cooperation efforts. Fordham International Law Journal, 19, 247.
Nelles, U. (2002). Definitions of harmonisation. In A. Klip & H. Van der Wilt (Eds.),
Harmonisation and harmonising measures in criminal law (pp. 31-43). Amsterdam:
Royal Netherlands Academy of Arts and Sciences.
Nilsson, H. G. (2006). From classical judicial cooperation to mutual recognition. Revue
International de Droit Pénal, 77(1-2), 53.
Peers, S. (2004). Mutual recognition and criminal law in the European Union: Has the
Council got it wrong? Common Market Law Review, 41, 5.
Satzger, H., & Zimmermann, F. (2008). From traditional models of judicial assistance
to the principle of mutual recognition: new developments of the actual paradigm
of the european cooperation in penal matters. In C. Bassiouni, V. Militello & H.
Satzger (Eds.), European Cooperation in Penal Matters: Issues and Perspectives (pp. 337-
361). Milan: CEDAM – Casa Editrice Dott. Antonio Milani.
Siracusa, L. (2008). Harmonisation of criminal law between first and third pillar or
the EU: Environmental protection as a Trojan horse of criminal law in the European
first pillar? A new Statement of the ECJ. In C. Bassiouni, V. Militello & H. Satzger
(Eds.), European Cooperation in Penal Matters: Issues and Perspectives (pp. 62-86).
Milan: CEDAM – Casa Editrice Dott. Antonio Milani.
GOFS 4.indd 39 25-01-2010 17:49:05
EU a n d In t E r n a t I o n a l Cr I m E Co n t r o l
40 Maklu
Somsen, H. (2003). Discretion in European Community environmental law: An analy-
sis of ECJ case law. Common Market Law Review, 40, 1413.
Spencer, J. R. (2002). Why is harmonisation necessary? In A. Klip & H. Van der
Wilt (Eds.), Harmonisation and harmonising measures in criminal law (pp. 43-55).
Amsterdam: Royal Netherlands Academy of Arts and Sciences.
Stefanou, C., & Xanthaki, H. (2008). Towards a European Criminal Record. Cambridge:
Cambridge University Press.
Stessens, G. ( 2000). Money Laundering. A New International Law Enforcement Model.
Cambridge: Cambridge University Press.
Swart, A. H. J. (2001). Een ware Europese Rechtsruimte. Rede uitgesproken bij de aanvaard-
ing van het ambt van bijzonder hoogleraar in de Europese strafrechtelijke samenwerking
aan de Universiteit van Amsterdam op vrijdag 9 maart 2001. Deventer: Gouda Quint.
Tadic, F. M. (2002). How harmonious can harmonisation be? A theoretical Approach
towards harmonisation of criminal law. In A. Klip & H. van der Wilt (Eds.),
Harmonisation and harmonising measures in criminal law (pp. 1-23). Amsterdam:
Royal Netherlands Academy of Arts and Sciences.
Thomas, F. (1980). De Europese rechtshulpverdragen in strafzaken. Gent: Rijksuniversiteit
te Gent.
Van den Wyngaert, C. (2003). Kennismaking met het Internationaal en Europees stra-
frecht. Antwerp – Apeldoorn: Maklu.
van der Wilt, H. (2002). Some critical reflections on the process of harmonisation
of criminal law within the European Union. In A. Klip & H. Van der Wilt (Eds.),
Harmonisation and harmonising measures in criminal law (pp. 77-87). Amsterdam:
Royal Netherlands Academy of Arts and Sciences.
Vander Beken, T. (2002). Freedom, security and justice in the European Union. A
plea for alternative views on harmonisation. In A. Klip & H. van der Wilt (Eds.),
Harmonisation and harmonising measures in criminal law (pp. 95-103). Amsterdam:
Royal Netherlands Academy of Arts and Science.
Vermeulen, G. (2002a). “U vraagt, wij draaien...”. Europees aanhoudingsbevel leidt tot
blinde overlevering verdachten en veroordeelden. Juristenkrant(57), 2.
Vermeulen, G. (2002b). Where do we currently stand with harmonisation. In A. Klip &
H. Van der Wilt (Eds.), Harmonisation and harmonising measures in criminal law (pp.
65-77). Amsterdam: Royal Netherlands Academy of Arts and Sciences.
Vermeulen, G. (2006). Wederzijdse erkenning van straffen in de Europese Unie en
België. In A. Masset & P. Thaest (Eds.), L’exécution des peines, de strafuitvoering (pp.
142-194). Brugge: La Charte.
Vermeulen, G. (2007). Vijftien jaar Uniestrafrecht: verwezenlijkingen en perspec-
tieven. In J. Meeusen & G. Straetemans (Eds.), Politiële en justitiële strafrechtelijke
samenwerking in de Europese Unie. Welk evenwicht tussen vrijheid, veiligheid en rech-
tvaardigheid? (pp. 79-108). Antwerp – Oxford: Intersentia.
GOFS 4.indd 40 25-01-2010 17:49:05
ap p r E C I a t I n G ap p r o x I m at I o n
Maklu 41
Vermeulen, G., & De Bondt, W. (2009). EULOCS. The EU level offence classification
system : a bench-mark for enhanced internal coherence of the EU’s criminal policy (Vol.
35). Antwerp – Apeldoorn – Portland: Maklu.
Vermeulen, G., Vander Beken, T., De Busser, E., & Dormaels, A. (2002). Blueprint for
an EU Criminal Records Database. Legal, politico-institutional and practical feasibility.
(Vol. 13). Antwerp – Apeldoorn: Maklu.
Vervaele, J. A. E. (2004). Europeanisering van het strafrecht of de strafrechtelijke
dimensie van de Europese integratie. Panopticon, 3.
Weyembergh, A. (2004). L’harmonisation des législations: condition de l’espace pénal
européen et rélévateur de ses tensions. Brussels: Éditions de l’Université de Bruxelles.
Weyembergh, A. (2005a). Approximation of criminal laws, the Constitutional Treaty
and the Hague Programme. Common Market Law Review, 42, 1567.
Weyembergh, A. (2005b). The functions of approximation of penal legislation within
the European Union. Maastricht Journal of European and Comparative Law, 12(2),
149.
Weyembergh, A. (2006). Le rapprochement des incriminations et des sanctions
pénales. Revue International de Droit Pénal, 77(1-2), 185.
Williams, S. A. (1991). The Double Criminality Rule and Extradition: A Comparative
Analysis. Nora Law Review, 581.
Wouters, J., & Naert, F. (2004). Of arrest warrants, terrorist offences and extradition
deals: An appraisal of the EU’s main criminal law measures against terrorism after
«11 September». Common Market Law Review, 41, 909.
GOFS 4.indd 41 25-01-2010 17:49:05
GOFS 4.indd 42 25-01-2010 17:49:05
Maklu 43
Approximation and mutual recognition of procedural
safeguards of suspects and defendants in criminal
proceedings throughout the European Union
Gert Vermeulen
Laurens van Puyenbroeck
1 General introduction
Since the concept of an ‘area of freedom, security and justice’ was introduced in 1997
with the Amsterdam Treaty, the European Union (EU) has added a new dimension to
the traditional police and judicial cooperation between its member states. In the main
EU policy documents aimed to elaborate this ambitious goal, European policy makers
have always stressed the importance of a well-balanced agenda taking into account
the core principles which lay at the foundation of the EU itself. In the conclusions of
the Tampere European Council of 15 and 16 October 1999, the following principles
– which have been reiterated in subsequent policy documents in this area ever since
– were expressed:
“From its very beginning European integration has been firmly rooted in a shared
commitment to freedom based on human rights, democratic institutions and the rule
of law. These common values have proved necessary for securing peace and develop-
ing prosperity in the European Union. They will also serve as a cornerstone for the
enlarging Union.
”People have the right to expect the Union to address the threat to their freedom and
legal rights posed by serious crime. To counter these threats a common effort is needed
to prevent and fight crime and criminal organisations throughout the Union. The
joint mobilisation of police and judicial resources is needed to guarantee that there is
no hiding place for criminals or the proceeds of crime within the Union.”
In other words, according to Europe’s leaders, in building the ‘area of freedom, secu-
rity and justice’, crime-fighting and protection of fundamental rights and freedoms
should go hand in hand.
Within this context, European criminal (procedural) law has developed with the
central goal of improving cooperation, both at the supranational as the inter-state level.
Important achievements have indeed been made since the Tampere Council. The
European arrest warrant being probably the best example of the direction in which
the EU wants to proceed. The main characteristic of this innovative instrument (the
adoption of which was highly influenced by the post ‘9/11’ trauma) is the principle
of mutual recognition. This principle, in a broad sense meaning the recognition of
foreign decisions without prior conditions and with immediate effect in the requested
GOFS 4.indd 43 25-01-2010 17:49:05
EU a n d In t E r n a t I o n a l Cr I m E Co n t r o l
44 Maklu
state, has taken judicial cooperation in criminal matters to a new level. However, the
practical implementation of the mutual recognition principle may be detrimental to
fundamental rights. The most striking example is the formal removal of the non-
discrimination rule from extradition/surrender law in the European Arrest Warrant
(EAW) framework.1
A critical observer of EU policy in the field of criminal law, cannot deny that the prac-
tice of EU-policy making (in the implementation of the Tampere Programme, particu-
larly since September 2001) and the main emphasis of the Action Plan implementing
the Hague Programme are mainly repressive and prosecution-oriented.2 The idea of
introducing a set of common (minimum) rules, guaranteeing the rights of defence
at a EU-wide level, has not been accorded the same attention as the introduction of
instruments aimed at improving the effectiveness of crime-fighting. Although some
symbolic steps have been taken (such as the signing of the Charter of Fundamental
Rights of the European Union in December 2000 by the European Commission, the
Council and the Parliament and the Proposal for a Council Framework Decision on
certain procedural rights in criminal proceedings throughout the European Union,
submitted by the European Commission on 28 April 2004), the realisation of mini-
mum standards still seems far away.
What does this finding mean for the future of the EU’s criminal policy? Will the EU
succeed the coming years in developing an area where freedom, security and justice
are truly balanced? According to several authors, the EU has evolved in the opposite
direction. As one observer put it: “if Procedural Criminal Law arises from the appli-
cation of Constitutional Law, or indeed if it may be described as ‘a seismograph of
the constitutional system of a State’, then as a consequence the Procedural Criminal
Law of the European Union shows the extent of the Democratic Rule of Law, of the
existence of a true ‘Rechtsstaat’, within an integrated Europe. This situation may be
qualified as lamentable, as the main plank of the EU’s criminal justice policy relates
to the simplification and the speeding up of police and judicial cooperation – articles
30 and 31 of the Treaty of the EU – but without at the same time setting an acceptable
standard for fundamental rights throughout a united Europe.”3
Against this background, the current article aims to explore some of the options avail-
able to the EU in proceeding with its work in this field. Three aspects constitute the
main framework. Firstly, a description of the work the EU has done so far in relation
to procedural rights in criminal proceedings. Depending on this ‘status questionis’, a
1 The remaining paragraph in the preamble, stating that the framework decision respects the funda-
mental rights and observes the principles recognised by Article 6 Treaty on the European Union (TEU)
and the EU Charter of Fundamental Rights (Chapter VI) and that nothing in the framework decision
may be interpreted as prohibiting refusal to surrender a person for whom a EAW has been issued when
objective elements exist for believing that the EAW is issued for the purpose of prosecuting or punish-
ing a person on account of his or her sex, race, religion, ethnic origin, nationality, political opinion or
sexual orientation, or that that person’s position may be prejudiced for any of these reasons, is de iure
insufficient to rule out that persons will be subjected to discriminatory prosecution in one of the mem-
ber states.
2 See, inter alia, M. Anderson, Law enforcement cooperation in the EU and fundamental rights protec-
tion, in M. Martin (ed.), Crime, rights and the EU: the future of police and judicial cooperation, JUS-
TICE, 2008, 105-120; E. Cape, J. Hodgson, T. Prakken and T. Spronken (eds.), Suspects in Europe,
procedural rights at the investigative stage of the criminal process in the European Union, Intersentia,
2007, 2-3.
3 K. Ambos, Mutual recognition versus procedural guarantees?, in M. de Hoyos Sancho (ed.), Criminal
proceedings in the European Union: essential safeguards, Lex Nova, Valladolid, 2008, 25.
GOFS 4.indd 44 25-01-2010 17:49:05
ap p r o x I m a t I o n a n d m U t U a l r E C o G n I t I o n o f p r o C E d U r a l s a f E G U a r d s o f s U s p E C t s a n d d E f E n d a n t s
Maklu 45
positive answer to the question whether there is a real need for EU action in this field
is a prerequisite in order to proceed to the final aspect, comprising an in-depth analy-
sis of the ideal (legal) mechanism(s) to achieve the two core objectives in this area: (1)
improving judicial (and police) cooperation and (2) providing suspects and defendants
within the EU with a procedural protection adequate to counterbalance the rapidly
expanding spectrum of investigation/prosecution-oriented instruments.
2 Criminal procedure within the EU:
status questionis
2.1 Introduction
The current basic framework of the EU regarding procedural rights in criminal pro-
ceedings consists of article 6 of the Treaty on European Union (TEU) and the EU
Charter of Fundamental Rights. Both documents explicitly refer to the acquis of the
European Convention for the Protection of Human Rights and Fundamental Freedoms
(ECHR) of the Council of Europe.
Article 6 TEU provides that the Union shall respect fundamental rights, as guar-
anteed by the ECHR and as they result from the constitutional traditions common to
Member States.
In December 2000, The European Commission, The Council and the Parliament
jointly signed and solemnly proclaimed the Charter of Fundamental Rights of the
European Union.4 The Charter includes several rights applicable to criminal proceed-
ings such as the ‘right to an effective remedy and a fair trial’ (article 47) and ‘the
presumption of innocence and right of defence’ (article 48). Moreover, article 53 states
that “in so far as this Charter contains rights which correspond to rights guaranteed
by the Convention for the Protection of Human Rights and Fundamental Freedoms,
the meaning and scope of those rights shall be the same as those laid down by the said
Convention. This provision shall not prevent Union law providing more extensive
protection.” Following the entry into force of the Lisbon Treaty, the Charter now is a
legally binding text.5
In order to better understand the background of the developments the past five
years at EU level in regard of procedural guarantees, two basis concepts should first
be explained, both lying at the core of the EU’s efforts to enhance cooperation between
competent authorities in criminal cases: (1) approximation and (2) mutual recogni-
tion.
2.2 Approximation of criminal procedure vs. mutual recognition
For decades, differences between national laws and legal cultures have been a breed-
ing ground for distrust and have resulted in a reluctance to cooperate and delays to
investigations. Taking away these differences, often referred to as harmonisation of
4 OJ., 18 December 2000, C.346/1
5 Declarations annexed to the final act of the intergovernmental conference which adopted the Treaty of
Lisbon, signed on 13 December 2007 (OJ., 9 May 2008, C.115/337).
GOFS 4.indd 45 25-01-2010 17:49:05
EU a n d In t E r n a t I o n a l Cr I m E Co n t r o l
46 Maklu
criminal law and procedure although approximation is a more accurate term, is one
way of getting round such difficulties.6
This strategy, however, is inclined to run up against the hurdle of subsidiarity in the
field of justice and home affairs, states not being much inclined to regard their own
laws and policies as being in need of adaptation.7 Therefore, a more subtle mechanism
has been developed.
The concept of mutual recognition of judicial decisions has been known, since the
European Council of Tampere in 1999,8 as the future ‘cornerstone’ of judicial coopera-
tion in – civil as well as – criminal matters and has in that context fulfilled the role of
catalyst in the development of harmonisation of the criminal law of the EU member
states. It implies that while another state may not deal with a certain matter in the
same or even a similar way as one’s own state, the results are accepted as equivalent
to decisions of one’s own state.
Finding its practical rendering in a well-structured 24-measure programme,9 the
realisation of the concept has featured high on the EU’s justice and home affairs
agenda during the past six years. Aimed at the elimination of all exequatur procedures
applicable between the EU member states, the mutual recognition principle requires
mutual trust between these states in the sense that they feel confident relying on each
other’s decisions in criminal matters and executing them without further require-
ments or conformity control vis-à-vis their own substantive and procedural criminal
law standards.10 So far, several steps have been taken to accomplish mutual recogni-
tion of certain decisions in criminal matters.11
6 Ch. Brants, Procedural safeguards in the European Union: too little, too late?, in J. Vervaele (ed.), Eu-
ropean evidence warrant: transnational judicial enquiries in the EU, Intersentia, 2005, 105.
7 Ibid.
8 European Council, Presidency Conclusions, 15-16 October 1999.
9 Council of the EU, Programme of measures to implement the principle of mutual recognition of judi-
cial decisions in criminal matters, OJ C 12, of 15.1.2001.
10 For this analysis, see earlier: G. Vermeulen, ‘Mutual recognition, harmonisation and fundamental
(procedural) rights protection’, in M. Martin (ed.), Crime, rights and the EU: the future of police and
judicial cooperation, JUSTICE, 2008, 89-104.
11 Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender proce-
dures between Member States, OJ L 190/1 of 18.7.2002; Council Framework Decision 2003/577/JHA
of 22 July 2003 on the execution in the European Union of orders freezing property or evidence, OJ L
196 of 2.8.2003; Council Framework Decision 2005/214/JHA of 24 February 2005 on the application
of the principle of mutual recognition to financial penalties, OJ L 76 of 22.3.2005; Council Framework
Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition
to confiscation orders, OJ L 328 of 24.11.2006; Council Framework Decision 2008/675/JHA of 24 July
2008 on taking account of convictions in the Member States of the European Union in the course of
new criminal proceedings, OJ L 220 of 15.8.2008; Council Framework Decision 2008/909/JHA of 27
November 2008 on the application of the principle of mutual recognition to judgments in criminal
matters imposing custodial sentences or measures involving deprivation of liberty for the purpose
of their enforcement in the European Union, OJ L 327 of 5.12.2008; Council Framework Decision
2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judg-
ments and probation decisions with a view to the supervision of probation measures and alternative
sanctions, OJ L 337, 16.12.2008; Council Framework Decision 2008/978/JHA of 18 December 2008 on
the European evidence warrant for the purpose of obtaining objects, documents and data for use in
proceedings in criminal matters, OJ L 350 of 31.12.2008.
In addition the Commission produced a green paper on the principle of mutual recognition: Commu-
nication from the Commission to the Council and the European Parliament on the mutual recogni-
tion of judicial decisions in criminal matters and the strengthening of mutual trust between Member
States, COM (2005) 195, 19 May 2005.
GOFS 4.indd 46 25-01-2010 17:49:05
ap p r o x I m a t I o n a n d m U t U a l r E C o G n I t I o n o f p r o C E d U r a l s a f E G U a r d s o f s U s p E C t s a n d d E f E n d a n t s
Maklu 47
2.3 The link between mutual recognition and procedural safeguards
The principle of mutual recognition has been known and applied in the context of
Europe’s internal market for decades (by establishing free movement of goods and
mutually recognising product standards).12 Transferring this principle to the setting
of criminal proceedings is not a simple matter though. The free movement of goods
cannot be compared to the free movement of evidence or data13 in the context of a
criminal prosecution. This is not only due to the fact that evidence or data to be used
in criminal proceedings cannot be extracted or ‘exported’ as a ‘final product’ from the
general context of its legal order, with its respective particularities relating to the way
it is gathered, without bringing about changes or loss of probative value.14 At least as
crucial is the fact that the personal freedoms of the EU’s citizens are at stake in this
field. This requires a specific approach.
The Tampere version of the mutual recognition principle was something of a
novum, in that it requires the recognition and execution of judicial decisions from
other member states without a national, judicial test of their lawfulness or legitimacy.15
The logical implication of this is mutual recognition a priori that the foreign process
in question meets all of the requirements that flow from the rule of law, as understood
by the executing state. It is a logical conclusion therefore that, given the sensitivities
surrounding sovereignty and feelings of superiority with regard to one’s own national
criminal procedures, mutual recognition in the field of judicial cooperation in crimi-
nal matters is only feasible if all states can rely on decisions taken abroad meeting at
least the minimum safeguards that their own procedures provide.16
2.4 Towards approximation of procedural rights of suspects and defendants: the
proposal for a framework decision
The Commission stated in 2000 in a Communication to the Council and the European
Parliament that “it must therefore be ensured that the treatment of suspects and the
rights of the defence would not only suffer from the implementation of the princi-
ple (of mutual recognition) but that the safeguards would even be improved through
the process”.17 This was endorsed in the Programme of Measures to implement the
Principle of Mutual Recognition of Decisions in Criminal Matters, adopted by the
Council and the Commission. It pointed out that “mutual recognition is very much
dependent on a number of parameters which determine its effectiveness” and that
these parameters include “mechanisms for safeguarding the rights of […] suspects”
(parameter 3) and “the definition of common minimum standards necessary to facili-
tate the application of the principle of mutual recognition” (parameter 4).18
This conviction led to the drafting by the Commission in 2004 of a ‘Proposal for
a Council Framework Decision on certain procedural rights in criminal proceedings
12 ECJ, 20 February 1979 (case 120/78).
13 Through the so-called principle of availability, cf. supra.
14 K. Ambos, l.c., 31.
15 Ch. Brants, l.c., 106
16 Ibid..
17 Communcation to the Council and the European Parliament of 26 July 2000 on Mutual Recognition of
Final Decisions in Criminal Matters (COM(2000) 495 final, 29.7.2000).
18 OJ, 15 January 2001, C.12, p. 10.
GOFS 4.indd 47 25-01-2010 17:49:05
EU a n d In t E r n a t I o n a l Cr I m E Co n t r o l
48 Maklu
throughout the European Union’.19 Emerging from the consultation process preceding
the drafting of this proposal were five areas of priority rights: legal aid for suspects and
defendants; the development of a ‘letter of rights’ to inform suspects which rights they
could exercise; extra protection for ‘vulnerable groups’; consular assistance; and trans-
lators and interpreters. Other subjects (such as bail, the principles of nemo tenetur
and ne bis in idem, fairness in the handling of evidence, appeal and trial in absentia)
were reserved for ‘further research’.
As negotiations developed, increasing opposition to the proposal emerged.
Probably the main dividing line was the question whether the EU was competent to
legislate on purely domestic proceedings or whether the legislation should be devoted
only to cross-border cases.20 It is striking to note in this respect that this element did
not prevent member states to adopt a wide range of measures in the fight against
crime, which also have direct implications for domestic law and domestic proceed-
ings (e.g. common definitions on terrorist offences21 or minimum standards on maxi-
mum sentences for certain types of trafficking in persons22). Nor was it an obstacle in
2001 for improving the standing of victims in criminal proceedings.23 In this context
reference should also be made to article 82 of the Treaty on the Functioning of the
European Union (TFEU).24 According to this article, directives establishing minimum
rules should aim at facilitating mutual recognition of judgments and judicial deci-
sions, and police and judicial cooperation in criminal matters. These minimum rules
should concern, inter alia, mutual admissibility of evidence between member states,
the rights of individuals in criminal procedure and the rights of victims of crime. This
competence of the EU is new, in the sense that criminal procedure had so far been left
out of the scope of harmonisation (cf. the wordings of article 31 TEU). Another com-
mon critique to the proposed framework decision was that the rights were too vague
and set at too low a threshold or that the proposal would have added little value to the
existing protections under the ECHR.
Eventually, no political agreement could be reached.25 The Commission however
remained convinced of the need for EU action on this point. A Study carried out for
the Commission by the Université Libre de Bruxelles (ULB) between 2007 and 2009
showed that almost all practitioners involved in cross-border proceedings consider an
instrument of this sort to be essential.26 Moreover, the Commission ordered a study
19 COM(2004) 328 final.
20 Press release on the 2807th Session of the Council on the 12th and 13th of June 2007.
21 Council Framework Decision of 13 June 2002 on combating terrorism, OJ L 164/3, 22.6.2002.
22 Council Framework Decision of 19 July 2002 on combating trafficking in human beings, OJ L 203/1,
1.8.2002.
23 Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings, OJ
L 82/1, 22.03.2001.
24 OJ. 9 May 2008, C 115, 47. With the entrance into force of the Lisbon Treaty, the existing Treaty es-
tablishing the European Community will be renamed as Treaty on the Functioning of the European
Union (TFEU). Together with the new Treaty on the European Union (TEU), the TFEU constitutes the
new foundation of the EU (see for a detailed explanation and for the status of ratifications: http://eu-
ropa.eu/lisbon_treaty/index_en.htm
25 Even on a diluted version, Justice Ministers could not find any agreement at the Justice and Home Af-
fairs Council on 19 to 20 April 2007. The proposal was discussed again by the Council on 13 June 2007.
The Council was unable to agree and there the matter has lain since.
26 G. Vernimmen-Van Tiggelen and L. Surano, Institute for European Studies, Université Libre de Brux-
elles ECLAN – European Criminal Law Academic Network, Analysis of the Future of Mutual Recogni-
tion in Criminal Matters in the European Union, 20th November 2008, EC DG JLS.
GOFS 4.indd 48 25-01-2010 17:49:05
ap p r o x I m a t I o n a n d m U t U a l r E C o G n I t I o n o f p r o C E d U r a l s a f E G U a r d s o f s U s p E C t s a n d d E f E n d a n t s
Maklu 49
to be carried out in order to obtain up to date information on this subject that could
provide a basis for a new proposal for a council framework decision.27
Finally, on 8 July 2009 the European Commission presented a new and much more
limited draft for a Council Framework Decision on procedural rights.28 Unlike the pre-
vious proposal, this new draft only focuses on one set of rights, namely those relating
to interpretation and translation.
3 Is there need for EU action in the field of procedural rights in criminal
proceedings?
3.1 Introduction
Given the difficulties already encountered in the negotiation of the 2004 Proposal and
taking account of the possible overlap with the ECHR, as stated by several member
states, it is useful to reflect on the need for a EU instrument on procedural rights.
Could it not suffice to refer to the ECHR as the main mechanism for preserving fun-
damental rights in Europe? Could the EU bring added value and, if so, in what way?
And does the mutual recognition doctrine not imply a basic level of trust between
EU’s member states?
The current chapter will show that the answer to each of these questions all comes
down to the same fundamental conclusion: there is an urgent need for an in-depth EU
legal initiative on procedural rights, not only to safeguard subjects involved in crimi-
nal proceedings throughout the EU but also to ensure the effectiveness of judicial and
police cooperation as such.
3.2 The (in)adequacy of the ECHR framework
A first question is whether the ECHR framework does not offer sufficient protection
to suspects and defendants in criminal proceedings. Doubts about whether the ECHR
and the European Court for Human Rights (ECtHR) are able to offer this kind of
protection, are not ill-founded. The ECHR is implemented to very differing standards
in the member states and there are many violations. The number of applications is
growing every year and the ECtHR is seriously overloaded (there are currently 110,000
cases outstanding at the ECtHR and articles 5 and 6 of the Convention are the most
commonly cited in applications). Moreover, member states have not always amended
their legislation to adapt them to the condemnatory judgements of the ECtHR which
– in essence – are not of an enforceable nature.
Further, the ECHR jurisprudence does not contain any explicit imperative on the
rules of evidence.29 The admissibility of evidence is primarily governed by the rules
27 The ‘Study on Procedural Rights in Criminal Proceedings: existing levels of safeguards in the Euro-
pean Union – 2008 update is carried out by the University of Maastricht (Prof. Taru Sponken) and by
the Institute for International Research on Criminal Policy of Ghent University (Prof. Gert Vermeu-
len). The study is a revision and update of an earlier study performed by Taru Spronken and Marelle
Attinger of Maastricht University, published in December 2005.
28 COM (2009) 338.
29 S. Gless, Mutual recognition, judicial inquiries, due process and fundamental rights, in J. Vervaele
(ed.), o.c., 124.
GOFS 4.indd 49 25-01-2010 17:49:05
EU a n d In t E r n a t I o n a l Cr I m E Co n t r o l
50 Maklu
of domestic law, provided that they respect the rights and freedoms guaranteed by
the Convention. It often remains difficult to conclude from the ECHR’s decisions
whether or to what extent the use of illegally or unfairly obtained evidence constitutes
a violation.
Besides the apparent need to complement or reinforce the protection offered by the
ECHR mechanism, a reflection on the need for initiatives on procedural rights at EU
level should also include some of the latest developments in the field of police and
judicial cooperation in criminal matters within the EU, in particular in the area of
evidence gathering and transferral.
3.3 Towards a free movement of evidence: what with procedural rights?
The main aspect in this respect concerns the recent adoption of the Council Framework
Decision on the European Evidence warrant (EEW).30 It has the aim of simplifying and
accelerating the gathering and transfer of evidence in criminal proceedings with a
cross-border element. It is mainly intended to replace the 19th century mutual assist-
ance approach with a modern procedure.31
The Framework Decision applies to objects, documents or data obtained under
various procedural powers, including seizure, production or searches. The EEW can
however not be used to interview suspects, take statements or hear witnesses and
victims.32 It can also not be used for investigative measures which involve obtaining
evidence in real-time such as interception of telecommunication and monitoring of
bank accounts.33 Nor can it be used to obtain evidence that can only result from further
investigation or analysis (e.g. to require the commissioning of an expert’s report or to
require the executing authority to undertake computerised comparison of information
(computer matching) to identify a person). The EEW will thus be used where evidence
is directly available in the executing state (e.g. extracting information from a register
of criminal convictions or requesting data on the existence of bank accounts). It is also
useable for obtaining objects, documents or data falling within the excluded categories
provided that they had already been gathered prior to the issuing of the warrant (e.g. to
obtain existing records of intercepted communications, surveillance, interviews with
suspects, statements from witnesses and DNA test results).34
Although the framework decision on the EEW does not directly address the
issue of mutual admissibility of evidence, the EEW nevertheless aims to facilitate
the admissibility of evidence obtained from the territory of another member state. It
intends to achieve this mainly in two ways, which touch upon the legal position of the
individual(s) concerned.
Firstly, certain procedural safeguards are included to protect some fundamental
rights: (1) only judicial authorities may issue such a warrant; (2) several conditions
must be met before a warrant can be issued (such as certification of its content and
30 Council Framework Decision 2008/978/JHA of 18 December 2008 on the European evidence warrant
for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters,
OJ L 350 of 31.12.2008.
31 Explanatory Memorandum Nos. 38 f., Proposal for a European Evidence Warrant.
32 Article 4, 2° (a).
33 Article 4, 2° (c).
34 Article 4, 4°.
GOFS 4.indd 50 25-01-2010 17:49:05
ap p r o x I m a t I o n a n d m U t U a l r E C o G n I t I o n o f p r o C E d U r a l s a f E G U a r d s o f s U s p E C t s a n d d E f E n d a n t s
Maklu 51
translation into one of the official languages of the executing state); and (3) certain
grounds of refusal may be claimed by the executing state.
Secondly, admissibility should be facilitated by adopting the ‘forum regit actum’
principle, introduced in 2000 by article 4 of the EU Convention on mutual legal assist-
ance in criminal matters.35 According to this principle, the requested state must pro-
vide assistance in accordance with the formalities and procedures expressly indicated
by the requesting state to the maximum extent possible. The requested state can only
refuse to comply with these requirements where this would be contrary to the funda-
mental principles of law of the executing state or where the Convention itself expressly
states that the execution of requests is governed by the law of the requested State.36
The rationale behind this principle is the idea that a piece of evidence, legally
obtained in one member state would be admissible as evidence throughout the EU.
This is probably not a realistic goal, for it requires the existence of a certain minimum
degree of trust of member states in one another’s criminal justice system. Only when
the executing member state deems the issuing state’s legal system sufficiently com-
patible with its own ‘fundamental principles of law’, will the execution of evidence
warrants (and the admissibility of evidence acquired) happen in a smooth and flexible
way. It is clear that a EU initiative on procedural rights would potentially have a positive
effect on guaranteeing this necessary confidence of member states in one another.
This is all the more necessary given the current plans of the Commission to ini-
tiate preparatory work on a Framework Decision which would expand the scope of
application of the Framework Decision on the EEW in order to further replace the
existing regime of mutual assistance within the EU by the principle of mutual recog-
nition.37 The explanatory memorandum of the EEW leaves no doubt in this respect38:
“…the European Evidence Warrant is, in the Commission’s view, the first step towards
a single mutual recognition instrument that would in due course replace all of the
existing mutual assistance regime. […]. Such a single consolidated instrument would
within the EU replace mutual legal assistance in the same way that the European
arrest warrant will replace extradition. The existing mosaic of international and EU
conventions governing the cross-border gathering of evidence within the EU would
thus be replaced by a single EU body of law.”
Traditional judicial cooperation in criminal matters will thus eventually be
replaced by the mutual recognition principle, which should smooth the way for inter-
state assistance and remove superfluous formalities from all methods of cooperation.
Combined with the continuing shift from the traditional ‘locus regit actum’ rule to the
‘forum regit actum’ principle, this would imply that the execution of these mutually
recognised warrants would be increasingly determined by the procedural rules of the
35 Convention of 29 May 2000 on Mutual Assistance in Criminal Matters between the Member States of
the European Union, OJ C 197, 12.7.2000, p. 1.
36 Article 12.
37 A preparatory study “The laws of evidence in criminal proceedings throughout the European Union”
(JLS 2008/E4/006) is currently carried out by the Institute for International Research on Criminal Poli-
cy (IRCP) of Ghent University (Prof. Gert Vermeulen) in cooperation with the University of Maastricht
(dr. Wilma Dreissen).
38 COM(2003) 688 final, p. 10.
GOFS 4.indd 51 25-01-2010 17:49:05
EU a n d In t E r n a t I o n a l Cr I m E Co n t r o l
52 Maklu
issuing/requesting state. This evolution implies that the EU is a considerable step
closer towards a genuine free movement of evidence between its member states.39
The link with the respect for procedural safeguards at a minimum level through-
out the EU is evident. The evolution towards a free movement of evidence would be
detrimental for the legal position of suspects and defendants throughout the EU, if
no adequate level of procedural protection were to be guaranteed. Furthermore, the
effectiveness of the system (i.e. a smooth execution of the ‘warrants’) would be seri-
ously hindered if the current differences between members in regard of procedural
rights were to be maintained. The executing member state would have to make a case
by case comparison between the procedural rules of the issuing member state and its
own fundamental principles of law.
It cannot be predicted how member state would deal with such an exercise. One
thing is sure though. A minimum standard of procedural safeguards, taking into
account the ECHR and case law of ECtHR on the one hand, and the fundamental
principles of each member state on the other hand, would hugely diminish potential
obstacles in applying the ‘forum rule’.
3.4 The breakdown of mutual recognition: mutual trust vs. the resurrecting
dominance of domestic procedures
Certain recent developments indicate that the EU is taking steps back in regard of the
mutual trust model. It seems that the mutual recognition doctrine is being questioned
by some member states in a fundamental way.40
The Council of the EU has – on a single but important stance, i.e. in the con-
text of the EEW – broken with its former reasoning founding the separate regime
for 32 offences not requiring any verification of dual criminality. Article 23(4) of the
Framework Decision on the EEW leaves room for a declaration by Germany (which
it has used) to reserve the right to make the execution of an EEW subject to verifica-
tion of dual criminality in cases relating to terrorism, computer-related crime, racism
and xenophobia, sabotage, racketeering and extortion or swindling, if it is necessary
to carry out a search or seizure for the execution of the warrant. Such dual criminal-
ity checks will not be performed, however, in cases where the issuing authority has
officially declared that its definition of one of the stated offences reflects the criteria
set out in the German declaration, which – unsurprisingly – reflects the constituent
elements the latter requires for the offence concerned. In other words, the Council has
agreed to allow Germany to return to the traditional system of dual criminality for at
39 It should be noted in this respect that there at already legal instruments in place that provide exten-
sive possibilities such as the Convention of 18 December 1997 on mutual assistance and cooperation
between customs administrations (Napels II Convention), OJ C 24/1, 23.01.1998. This Convention
– which can be applied between judicial authorities in criminal investigations (article 3) – not only
provides that “the requested authority shall agree to comply a particular procedure in response to a re-
quest, provided that that procedure is not in conflict with the legal and administrative provisions of the
requested Member State” (article 9, 6°) but also foresees a far-reaching framework for using informa-
tion in a broad sense (“…findings, certificates, information documents, certified true copies and other
papers…”) acquired in the requested state as evidence in accordance with national law of the request-
ing state (article 14).
40 For this analysis, see earlier, G. Vermeulen, ‘Mutual recognition, harmonisation and fundamental
(procedural) rights protection’, in M. Martin (ed.), Crime, rights and the EU: the future of police and
judicial cooperation, JUSTICE, 2008, 89-104.
GOFS 4.indd 52 25-01-2010 17:49:06
ap p r o x I m a t I o n a n d m U t U a l r E C o G n I t I o n o f p r o C E d U r a l s a f E G U a r d s o f s U s p E C t s a n d d E f E n d a n t s
Maklu 53
least some of the core crime categories featured in the 32-list, such as terrorism, by
granting it the possibility of opting-out. In allowing the opt-out clause, which itself is
clearly triggered by the growing distrust of at least one of the member states, the EU
seems to have taken a retrograde step. The proclaimed mutual trust model, on which
mutual recognition is based, has been confronted by a new realism. It seems that we
are close to exhausting the momentum that 9/11 created, which led to the political
success of the mutual recognition principle.
Further, it seems that, once again, the mutual recognition principle is unexpect-
edly – probably due to its original success –