Judicial Cooperation in Criminal Matters
“The historical development of the judicial cooperation in criminal matters between the member states”
List of abbreviations:
ETA Basque underground organization
EU European Union
Eurojust The European Union’s Judicial Cooperation Unit
Europol European Police Office
TEU Treaty on European Union
TCE European Constitution
EEC European Economic Community
JCC Judicial Cooperation in Criminal Matters
OLAF European Anti-fraud Office
RAF Red Army Fraction
The judicial cooperation between the Member States has experiences many alterations since its beginning. This essay presents the historical development of the judicial cooperation in the range of criminal matters.
As the Eurojust agency, which was not founded until 2003, states an important milestone in the history of judicial cooperation in criminal matters, the work will focus as well on the historical background, which led to its foundation as well as on the goals and work areas of this agency.
Afterwards there will be given a perspective, how Eurojust – comparing with the Treaty on European Union – will look like after the enforcement of the European Constitution. The sources were newer publications, which focused especially on Eurojust, as well as different web sites of the European Union, the European Community, the European Commission, etc.
2. The historical development of the judicial cooperation in the member states
The multilateral cooperation of the member states in concerns of their homeland security, especially the police and judicial crime fighting, started on different levels and in special subject matters on the basis of different legal foundations and instruments.
The contract of the European Economic Community dated 25th march 1997 did not preview any regulations in the area of judicial cooperation (Schomburg, p. 14). But the collaboration of the member states developed on a bilateral, regional and international level. Especially in the work areas of the European Council it was of big importance. In the conferences of the ministers and experts of the respective departments conventions and recommendations were worked out for the field of Criminal Law and Criminal Law Proceedings. In 1957 the European Committee on Crime Problems was founded with the goal, to work out and realize an action plan on the area of crime prevention and the treatment of lawbreakers. The result of this activity were two agreements, which are called “mother conventions”: 1957 the European Convention on Extradition1 and 1959 the European Convention on Mutual Assistance in Criminal Matters2.
Caused by growing terrorism danger – e.g. in Germany by the RAF, in Spain with the ETA – in the seventies the member states started to cooperate outside of the community area in judicial matters on an informal, intergovernmental basis. An enforcement of this collaboration became necessary from the mid eighties, as a rulement about the free movement of persons was introduced within the Schengen Cooperation and Convention3 led to a gradual elimination of the border controls along the common borders.
With the Treaty of Amsterdam4 the buildup of Europe was enriched with the so called “Third Pillar”: the cooperation in the areas of justice (civil and criminal matters) and internal affairs.
A further success was achieved with the signing of the Treaty of Amsterdam5, by whom the judicial cooperation in civil matters was transferred into the Community Law. The judicial cooperation in criminal matters stayed furthermore in the area of the “Third pillar” (Title VI).
The Treaty of Nice, which has been signed on February 26th, 2001 represents an enhancement in concerns of judicial cooperation comparing to the Treaty of Amsterdam, as it includes the decision taken on the special session of the European Council on October 15th/16th, 1999 in Tampere about the buildup of Eurojust with its Article 31 (see 3.)
Within the judicial cooperation in criminal matters there already were some improvements regarding the intergovernmental communication before the buildup of Eurojust, thus e.g. the Council “Justice and internal affairs” has accepted a common measure on June 29th, 1998: the “Cover note for rogatory letters”. Its available on the internet in all the EU languages. Since January 1st, 2004 the “European arrest warrant” came into effect6. It can be issued, as soon as it concerns a criminal offense, which is designated for a minimum penalty of one year of imprisonment. It is as well available on the internet in all EU languages.
3. The development of international cooperation in criminal matters in the Treaty on European Union (TEU)
A main aim of the TEU has been to create a an area of freedom, security and justice. During the negotiations of the Maastricht Treaty the member states made a list of domains of common interest and defined the intended ways of cooperation. Among other things, judicial Cooperation in criminal matters was defined as a point of common interest7.
This domain remained part of the authority of the member states, but the treaty ascertained, that the member states had to inform and to consult each other in order to coordinate their action. They also should start a cooperation of their responsible administrative authorities8.
In Article K. 1 of TEU (Amsterdam version, 1997) was defined, how the aim, to provide citizens with a high level of safety within an area of freedom, security and justice, should be achieved:
- closer cooperation between judicial and other competent authorities of the Member States in accordance with the provisions of Articles K.3(a) to (d) and K.4;
- approximation, where necessary, of rules on criminal matters in the Member States, in accordance with the provisions of Article K.3(e)9.
In accordance with Art. K 3 the common approach in the field of judicial cooperation in criminal matters should include following measures:
a) facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the Member States in relation to proceedings and the enforcement of decisions;
b) facilitating extradition between Member States;
c) ensuring compatibility in rules applicable in the Member States, as may be necessary to improve such cooperation;
d) preventing conflicts of jurisdiction between Member States;
e) progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the field of organised crime, terrorism and illicit drug trafficking10.
In the Treaty of Nice (2001), the common policy was defined in the new Article 3111. The innovations to the Treaty of Amsterdam are marked:
1. Common action on judicial cooperation in criminal matters shall include:
a) facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the Member States, including, where appropriate, cooperation through Eurojust, in relation to proceedings and the enforcement of decisions;
b) facilitating extradition between Member States;
c) ensuring compatibility in rules applicable in the Member States, as may be necessary to improve such cooperation;
d) preventing conflicts of jurisdiction between Member States;
e) progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism an illicit drug trafficking.
2. The Council shall encourage cooperation through Eurojust by:
a) enabling Eurojust to facilitate proper coordination between Member States national prosecuting authorities;
b) promoting support by Eurojust for criminal investigations in cases of serious cross border crime, particularly in the case of organised crime, taking account, in particular, of analyses carried out by Europol;
c) facilitating close cooperation between Eurojust and the European Judicial Network, particularly, in order to facilitate the execution of letters rogatory and the implementation of extradition requests.
It was important to the Member States, that the authority Eurojust is only for the cooperation in the field of criminal matter.
4. Eurojust (European Judicial Cooperation Unit)
On October 15th and 16th, 1999 a special session of the European Council took place in Tampere (Finland), that exclusively concerned with the cooperation in the field of justice and home affairs. During this session the decision was made to set up a special team of justice experts called Eurojust.
The council of ministers of justice and home affairs was instructed to prepare the required legal instrument until the end of 2001. At December 14th, the council made the decision that a precursor organisation – called Pro-Eurojust – should start its work in Brussels on March 1st
2001. Pro-Eurojust existed, till the legal act establishing Eurojust has been accepted in its final form. On February 28th 2002 the council made his “Decision setting up Eurojust”12.
Mielke13 basically embraced the establishment of Eurojust, but found fault with the fact that it was established by a simple decision of the council and not by an agreement including the national parliaments – as in the case of Europol. But in this way the process of establishment could be accelerated.
Eurojust is an organ of the EU with an own legal personality and was established in April 2003. From the beginning, The Hague was the location of the headquarter, but first it was only a provisional headquarter there. At the December 2003 the member states decided that Eurojust was headquartered in The Hague definitively.
According to Art. 3 of the Decision establishing Eurojust, the objectives of Eurojust should be:
a) to stimulate and improve the coordination, between the competent authorities of the Member States, of investigations and prosecutions in the Member States, taking into account any request emanating from a competent authority of a Member State and any information provided by anybody competent by virtue of provisions adopted within the framework of the Treaties;
b) to improve cooperation between the competent authorities of the Member States, in particular by facilitating the execution of international mutual legal assistance and the implementation of extradition requests;
c) to support otherwise the competent authorities of the Member States in order to render their investigations and prosecutions more effective.
Art. 4 of the decision defines the competences, that cover
a) the types of crime and the offences in respect of which Europol is at all times competent to act pursuant to Article 2 of the Europol Convention of 26 July 1995;
b) the following types of crime:
— computer crime,
— fraud and corruption and any criminal offence affecting the European Community's financial interests,
— the laundering of the proceeds of crime,
— environmental crime,
— participation in a criminal organization 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 organization in the Member States of the European Union (1);
c) other offences committed together with the types of crime and the offences referred to in points (a) and (b).
For types of offences other than those referred to in paragraph 1, Eurojust may in addition, in accordance with its objectives, assist in investigations and prosecutions at the request of a competent authority of a Member State.
According to this, Eurojust is not a „European counsel for the prosecution”, its members don’t make own investigations and are not party of legal proceedings. The authority is only an assisting unit for the national law enforcement agencies. In other words, Eurojust is a judicial service point for the EU Member States ` courts and law enforcement agencies.
The official language of Eurojust is English. The activity of Eurojust is specific to the handling of concrete cases, what you can see from its organization structure:
In the moment there are five committees14:
1. Casework Committee
2. Communications Committee
3. Strategy Committee
4. Administrative Committee
5. Evaluation Committee
Langsdorff / Kapplinghaus15 specify the cases that Eurojust has attended to since is beginning:
- 192 cases in 2001 (10 months), therefrom about 70 % bilateral,
- 202 cases 2002,
- 301 cases in 2003, therefrom still about 70 % bilateral cases,
- 220 cases in 2004 (until August 1st).
Langsdorff / Kapplinghaus also say that Eurojust has the advantage that it is able to accelerate processes as for example extradition requests or letters rogatories, because it coordinates and concentrates investigations16.
Art. 23 of the Decision of the Council says that an independent joint supervisory body should be established in order to ensure that the processing of personal data is carried out in accordance with that Decision. To set up the Joint Supervisory Body, each Member State appoints a judge for inclusion on the list of judges who may sit on the Joint Supervisory Body as members. The judge appointed by the Member State holding the Presidency of the Council chairs the Joint Supervisory Body.
All persons that are affected by Eurojust´s work can ask the authority for information, rectification of their data or apply for a cancellation of data (Zöberlein, 2002, page 81)17
According to Art. 23 (12) of the Decision of the Council, the Joint Supervisory Body submits an annual report to the Council.
5. Effects of the European Constitution on the juridical cooperation in criminal cases
Due to the constitution, the hitherto existing method of interstate agreements in the section of juridical cooperation is dispensable, because she combines nearly all levels of politics in the EU into one structure, which enables more transparent, effective and democratic procedures to be used and the recent column structure of the EU will be abolished.
The axiom of unanimity is abolished in favour of qualified majority decisions..
The parliament, in combination with the council, is colawmaker, and the passed laws are under judicial control of the European Court of Justice. “The European Community Guarantees its members a consistent “Area of freedom, security and justice”. In concrete: “Extension of cooperation in police and judiciary in criminal cases. Aim is especially the struggle against terrorism, sexual exploitation of women and children, drug trafficking, money laundering, corruption and organised crime.
Implementation of an European Prosecutor. This is more useful to fight international criminality(…)”
Esser regrets, that “the contract of Constitution has no definite commitment to a strict parliamentary control of Eurojust, even though the institution is not only planed as starting point for the coming European Prosecution, to protect the financial interests of the EU and (optional) to fight against heavy criminality with transborder dimensions,(…) but also has the permission to initiate penal inquiries and propose measures for persecution.18
In the European Constitution, Part III, Chapter IV „Area of freedom, security and justice” Art. III-257 says
“1. The Union shall constitute an area of freedom, security and justice with respect for
fundamental rights and the different legal systems and traditions of the Member States.
3. The Union shall endeavour to ensure a high level of security through measures to prevent and combat crime, racism and xenophobia, and through measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as through the mutual recognition of judgments in criminal matters and, if necessary, through the approximation of criminal laws.
In comparison with the Amsterdam EUC, Art.K.1, is to be said, that the aim still is on an “approach of the penal provisions”, meanwhile the EC (European Constitution) already aims at an harmonization.
Part III, chapter IV, articles III-270 to III-274 are dedicated to the judicial cooperation, whereas also here can be asserted, that the harmonization of legal provisions and setting of minimum standards is an aimed goal.
The activity of Eurojust in concretized in Art.III-273:
1. Eurojust’s mission shall be to support and strengthen coordination and cooperation between national investigating and prosecuting authorities in relation to serious crime affecting two or more Member States or requiring a prosecution on common bases, on the basis of operations conducted and information supplied by the Member States' authorities and by Europol.
In this context, European laws shall determine Eurojust's structure, operation, field of action and tasks. Those tasks may include:
(a) the initiation of criminal investigations, as well as proposing the initiation of prosecutions,
conducted by competent national authorities, particularly those relating to offences against the financial interests of the Union;
(b) the coordination of investigations and prosecutions referred to in point (a);
(c) the strengthening of judicial cooperation, including by resolution of conflicts of jurisdiction and by close cooperation with the European Judicial Network.
European laws shall also determine arrangements for involving the European Parliament and national Parliaments in the evaluation of Eurojust's activities.
2. In the prosecutions referred to in paragraph 1, and without prejudice to Article III-274, formal acts of judicial procedure shall be carried out by the competent national officials.
As soon as the EC becomes operative, another advantage of judicial cooperation would be in sight, because Art. III-274 opens the possibility for a „European Prosecution“, mentioned by Esser.
1. In order to combat crimes affecting the financial interests of the Union, a European law of the Council may establish a European Public Prosecutor's Office from Eurojust. The Council shall act unanimously after obtaining the consent of the European Parliament.
2. The European Public Prosecutor's Office shall be responsible for investigating, prosecuting and bringing to judgment, where appropriate in liaison with Europol, the perpetrators of, and accomplices in, offences against the Union's financial interests, as determined by the European law provided for in paragraph 1. It shall exercise the functions of prosecutor in the competent courts of the Member States in relation to such offences.
3. The European law referred to in paragraph 1 shall determine the general rules applicable to the European Public Prosecutor's Office, the conditions governing the performance of its functions, the rules of procedure applicable to its activities, as well as those governing the admissibility of evidence, and the rules applicable to the judicial review of procedural measures taken by it in the performance of its functions.
4. The European Council may, at the same time or subsequently, adopt a European decision amending paragraph 1 in order to extend the powers of the European Public Prosecutor's Office to include serious crime having a cross-border dimension and amending accordingly paragraph 2 as regards the perpetrators of, and accomplices in, serious crimes affecting more than one Member State. The European Council shall act unanimously after obtaining the consent of the European Parliament and after consulting the Commission.
Already in his reflection of the „“Concept for a contract over a European Constitution“ Milke19 puts a special focus on the conclusion, that the inauguration of a “European Prosecution” has to develop out of Eurojust.
Zöberlein20 comments, that an overwhelming majority of the member states is in favour of a „European Prosecution“.
A “European Prosecution”, developed out of Eurojust, wouldn’t only support the community, but also the single member states itself in one of their main interests, fighting criminality most effectively and bring, in their eyes, a big surplus value.
Progress is seen in the fact, that a „European Prosecution” can fight crimes in order to protect financial interest of the EU, meaning being able to act itself, a measure impossible for Eurojust, because this institution , like mentioned above, is just a support unit for national prosecutors and serves as a judicial service- and meeting point.
Langsdorf and Kapplinghaus21 explain in their article, that the capacities of Eurojust have not reached their peak now. Possibilities of this institution, to coordinate in multilateral cases, have not been fully called upon yet. This would only be reached, by increasing the knowledge about Eurojust in the member countries and to make clear, that it makes sense to use this institution.
In view of the joining of ten new states on May 01.2004 and the joining of other new countries in recent future, work and awareness level of Eurojust have to be attached with more importance and adherence. Considering the fact, that due to the extension of EU, more cases are expected to come, Eurojust will have to be better equipped in personal terms. The aim of harmonization of penal provisions will not be reached quickly, due to inclusion of more members, because the EU extension has also brought a wider variety of different penal provisions.
As final remark, let me quote out of Wolfgang Schomburg’s (judge at the BGH) article:
“It is to aim on a complete revision of law concerning cooperation in criminal cases, with the goal of systematization, harmonization and standardization, in the best case in one entity convention. Eurojust, Europol and other institutions like OLAF should be enabled to cooperate operatively and executively as fast as possible, whereas the intersection from horizontal to vertical judicial assistance will be a running one.(…) Just to have a chance, to fight the increasing transnational criminality effectively on all continents, we are damned to success. At this moment, the way of getting there is leading through a reasonable cooperation in cooperation in criminal cases in Europe.”22
Esser, Robert, 2004: Der Beitrag von Eurojust zur Bekämpfung des Terrorismus in Europa, Goltdammer’s Archiv für Strafrecht, 151 (2004), 12, S. 711-721.
Esser, Robert / Herbold, Anna Lina, 2004: Neue Wege für die justizielle Zusammenarbeit in Strafsachen – Das Eurojust-Gesetz, in: NJW 57, 34, S. 2421-2424.
Europäische Gemeinschaften, 2004: Eine Verfassung für Europa – Rom, den 29.10.2004, Luxemburg: Amt für amtliche Veröffentlichungen der Europäischen Gemeinschaften.
Europäische Gemeinschaften, 2004: Eine Verfassung für Europa – Von den Staats oder Regierungschefs angenommene Verfassung. Eine Darstellung für die Bürger, Luxemburg: Amt für amtliche Veröffentlichungen der Europäischen Gemeinschaften.
Europäische Kommission, Januar 2004: Freiheit, Sicherheit und Recht für alle – Justiz und Inneres in der Europäischen Union, Katalognr.: NA-56-03-756-DE-C,
Eurojust, 2002: Geschäftsordnung,
Generalsekretariat des Rates, 2001: In die EU übernommener Schengen-Besitzstand, http://ue.eu.int/uedocs/cmsUpload/SCH.ACQUIS-DE.pdf
Kohler-Koch, Beate / Conzelmann, Thomas / Knodt, Michèle, 2003: Europäische Integration – Europäisches Regieren, Opladen: Leske + Budrich, Kap. 7
Langsdorff, Hermann von / Kapplinghaus, Jürgen, 2004: Eurojust - Baustein auf dem Weg zum Raum der Freiheit, der Sicherheit und des Rechts, in: Bewährungshilfe – Soziales, Strafrecht, Kriminalpolitik, 51 (2004), 4, S. 345-355
Milke, Tile, 2003: Europol und Eurojust: Zwei Institutionen zur internationalen Verbrechensbekämpfung und ihre justitielle Kontrolle, Göttingen: V&R unipress GmbH 14
Schomburg, Wolfgang, 2000: EUROJUST neben EUROPOL: Kooperation bei der Kooperation in Europa, in: Kriminalistik: unabhängige Zeitschrift für die gesamte kriminalistische Wissenschaft und Praxis, 54, 1, S. 13-21
Rat der Europäischen Union: Die Dritte Säule der EU – Polizeiliche und justizielle Zusammenarbeit, http://europa.eu.int/pol/justice/index_de.htm
Weidenfeld, Werner / Wessels, Wolfgang (Hrsg.), 2002: Europa von A bis Z – Taschenbuch der europäischen Integration, Bundeszentrale für politische Bildung, Bonn
Zöberlein, Renate, 2004: Auf dem Weg zu einer gemeinsamen Strafverfolgung: Eurojust als Keimzelle einer europäischen Staatsanwaltschaft?, Logos Verlag Berlin
Raum der Sicherheit, http://europa.eu.int/scadplus/leg/de/s22004.htm#COOPJUDPEN
Raum der Sicherheit: Einleitung, http://europa.eu.int/scadplus/leg/de/lvb/l33002.htm