College aantekeningen
European Criminal Law UVT - Hoorcolleges
- Instelling
- Tilburg University (UVT)
Lecture notes of 17 pages for the course European Criminal law at UVT
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European Criminal law, lecturesLecture 1&2 The Legal Framework
Young Nigerian women are lured by traffickers into the sex business in the Netherlands.
They come to the Netherlands and think that they are gonna work as waiters. They’ve made
a contract in Nigeria and made a contract with a ‘madam’, who will take care of them. They
were found in brothels, which raised the question if they did that voluntarily. When they
started questioning these young women they found out that some of them disappeared,
while others were transferred to other European countries. In the end this led to the Coldfish
case. The investigation took some time and effort, they didn’t have a particular idea of what
was going on. The investigation was slow because of:
Cooperation between countries was needed:
- Police, for example EUROPOL
o EUROPOL. European Police office. There is a regulation for the establishment
of Europol, where the mandate of Europol is included. Europol doesn’t
function as an FBI, it’s not an operational police force which you can call for
information. Europol is a channel for the submission for a request. As an
officer that wants further information you can forward a request to Europol.
Europol has representatives from all EU countries and the request is
forwarded to the national desk of the countries from which you want
information.
Advantage: fast way of communication, al the national desks are
gathered. If you have a request for more countries, or you don’t know
which country you should ask for information Europol is a great
system.
You can also make a direct request, if you know colleagues from other
countries you can directly ask them for information.
o Schengen convention
- Judicial
o Eurojust: another organization that was enforced. Eurojust as well as Europol
are located in The Hague. They have operational powers to a limited extend,
they are not prosecutors. It’s a communication channel, they can come
together at the office of Eurojust where countries can exchange information.
They set up joined investigation teams (police from several countries are
working together on a specific case), which is based on a framework decision
in 2002. But this didn’t happen.
o When you found a person and you want the person to come to the
Netherlands to make a trial against them. If you want to get that person to the
Netherlands you can file a European arrest warrant (EAW). An EAW is a
surrender procedure. In most of the constitutions we have the provision that
you can’t extradite your own nationals. The prohibition not to extradite your
own nationals is not allowed under the EAW. In principle, if one of the EU
member states asked for the surrender of a person for one of the 32 crimes
laid down in article 2 of the EAW, the states surrenders the suspect.
The EAW was adopted in 2002, it’s a framework decision. Under EU law we
know directive, regulations and decisions. For EU criminal law we have
different legal instruments. A framework decision is the most important legal
, instrument. It’s binding upon the MS, but doesn’t have direct effect. It’s a
parallel instrument as a directive, it’s addressed to the states, they need to
implement it. The only difference is that they don’t have direct effect.
There are a limited grounds of refusal.
o Can ask other state to give evidence, the European Evidence Warrant. You
ask the state for information, file a request. There are certain time limits, if a
certain persons agrees to be surrendered, he should be handed over within 10
days. If he doesn’t agree, 60 days.
Big advantage of EAW and EEW is that there are strict time limits.
European criminal law has grown explosive, there have been changes over the last
10-15 years which are still relevant for the legal framework today.
History of European Criminal Law
To work together with countries outside of Europe there are conventions of the
council of Europe. The Council of Europe has a whole list of relevant legal treaties,
binding for most of the EU countries, but also for countries outside of the EU. If you
need to cooperate with countries that aren’t located within the EU you can use these
treaties on police/judicial cooperation. You always need to have a legal basis that
allows you to request for information, or request for the extradition of that person. In
most of the conventions there is the requirement of ‘double criminality’: which means
that the crime committed must be illegal in both states, in the requesting and the
requested state.
Council of Europe has 47 states that are a party to it. In the European Union there
are 27 Member States. You have to keep in mind that it’s a more traditional
cooperation based on the conventions of the council of Europe. There are no strict
deadlines for the person to be extradite, to give information, so it’s basically based on
the willingness of countries to work together.
To work together with countries outside of Europe you can only work together once
there is a convention that says something about cooperation with the country. Lets
take the example of the Nigerian women: we don’t have any cooperation with the
country. But with transnational crimes it’s very difficult. The UN convention on
transnational organized crime is a very important treaty which can function as a legal
basis for cooperation. We have three protocols, in this particular Coldfish case there
was no convention with Nigeria. But Nigeria signed the protocol.
History
Under the EU you had three pillars:
1. European economic communities
2. Foreign Security policy
3. Police and judicial cooperation in criminal matters
This was created with the treaty of Maastricht, which was adopted in 1993. Before we
already had intensified cooperation outside the scope of the EU, which was
somehow related to the EU. That were the ‘ad hoc working groups’. Most of the
, countries of the EU cooperated together to think about policy developed in these
areas. In 1986 the idea of the internal market was launched. The law enforcement
officers started to get nervous, their jobs would be at stake. What about the security
within the EU. They started to think about counter measures. Not only goods, but
also criminals could go to different countries without any control. That’s when the
trevi group was made, they discussed what kind of measures were needed. They
decided to have separate groups (organized crimes, terrorism). Later that lead to the
first Shengen agreement. This was outside the EU, but a development that was
linked to the EU. It was a smaller group that first concluded the first Shengen
agreement that was adopted in 1985. The first Shengen agreement was so
complicated that they needed a second agreement to explain what was in the
Shengen agreement. The 1990 agreement relates to cooperation on different levels.
It was a far going treaty, it was for the first time that police officers were allowed to
follow suspects to different countries. It was the first time that powers in a country
could be exercised by foreign authorities. Which was quite outgoing and innovative.
The police force and security issues were still seen as sovereign powers, but now
they weren’t that sovereign anymore.
The Shengen convention was established outside the framework of the EU. But in
1992 there was the Treaty on the European Union, the Maastricht Treaty. The three
pillar structure, and the police and judicial cooperation pillar was introduced. The
Shengen convention was applied years after the treaty of Maastricht entered into
force. It was very much the Shengen convention that was important. Under the treaty
of Maastricht the cooperation was only in the first pillar where you had supranational
cooperations, you had decisionmaking. In the 2nd and 3rd pillar it was more based on
intergovernmental cooperation, negotiations. That was one of the reasons that police
and judicial cooperation in the starting years didn’t develop very fast. All states had
the right to negotiate and had the right to veto, not a lot of conventions got adopted.
Parallel to that you had the Shengen conventions, was also intergovernmental, but
the provisions were far richer. Direct communication between police provides better
possibilities for police officers. So at that time the Shengen treaty was more
important.
- Maastricht treaty intergovernmental cooperation on political and judicial
cooperation. So not a lot of conventions got adopted (right to veto)
Shengen area: Ireland and the UK had a special decision in the Shengen area. UK,
Ireland and Denmark can decide whether they want to join or not, opt in or opt out
protocol. Norway and Iceland were part of the Shengen area, but not to the EU.
Typical for the cooperation for the Maastricht treaty and the 3 rd pillar was:
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