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8.1.2.  Police and judicial cooperation in criminal matters in the EU

    Criminal behaviours should be approached in the same way throughout the Union. Therefore, judicial cooperation in criminal matters in the Union is based on the principle of mutual recognition of judgments and judicial decisions and includes the approximation of the laws and regulations of the Member States in certain areas. In criminal matters having a cross-border dimension, the European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules concerning: (a) mutual admissibility of evidence between Member States; (b) the rights of individuals in criminal procedure; (c) the rights of victims of crime; (d) any other specific aspects of criminal procedure which the Council has identified in advance by a decision adopted unanimously, after obtaining the consent of the European Parliament (Article 82 TFEU).

    The areas of particularly serious crime with a cross-border dimension are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime. The Council, acting unanimously, may identify other areas of serious crime. Directives may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned (Article 83 TFEU).

    The police cooperation of the Union involves all the Member States' competent authorities, including police, customs and other specialised law enforcement services in relation to the prevention, detection and investigation of criminal offences. Towards this end, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may establish measures concerning: (a) the collection, storage, processing, analysis and exchange of relevant information; (b) support for the training of staff, and cooperation on the exchange of staff, on equipment and on research into crime-detection; and (c) common investigative techniques in relation to the detection of serious forms of organised crime (Article 87 TFEU).

    A member of the Council may request that a draft directive on judicial cooperation in criminal matters be referred to the European Council, thus suspending the ordinary legislative procedure. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure. Within the same timeframe, in case of disagreement, at least nine Member States may declare their intention to proceed to the establishment of enhanced cooperation on the basis of the draft directive concerned (Article 82 TFEU) [see section 4.3].

    Actually, the Council, acting in accordance with a special legislative procedure (unanimity after consultation of the European Parliament), may establish measures concerning operational cooperation between the competent authorities. In case of the absence of unanimity in the Council, a group of at least nine Member States may request that the draft measures be referred to the European Council. In that case, the procedure in the Council shall be suspended. Within four months of this suspension, in case of disagreement, at least nine Member States may declare their intention to proceed to the establishment of enhanced cooperation on the basis of the draft measures concerned. This specific procedure does not apply to acts which constitute a development of the Schengen acquis (Article 87 TFEU).

    Intergovernmental cooperation measures include: guidelines for preventing and restraining disorder connected with football matches [Council Recommendation and Resolution]; the establishment of contact points in the Member States for gathering and exchanging information of a police nature, with a view to preventing and combating football-related violence [Decision 2002/348, consolidated version 16.06.2007]; cooperation on law and order and security at meetings attended by large numbers of people, such as sporting events, rock concerts, demonstrations and road-blocking protest campaigns [Joint Action 97/339].

    Eurojust's mission is 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. Eurojust's tasks include: (a) the initiation of criminal investigations, as well as proposing the initiation of prosecutions conducted by competent national authorities; (b) the coordination of investigations and prosecutions; and (c) the strengthening of judicial cooperation (Article 85 TFEU).

    Replacing the Europol Convention signed on 26 June 1995 [Council Act and Decision], the European Police Office (Europol) is actually set up as a European Union agency [Regulation 2016/794]. Europol's mission is to support and strengthen action by the Member States' police authorities and other law enforcement services and their mutual cooperation in preventing and combating serious crime affecting two or more Member States, terrorism and forms of crime which affect a common interest covered by a Union policy. The European Parliament and the Council, by means of regulations adopted in accordance with the ordinary legislative procedure, determines Europol's structure, operation, field of action and tasks. These tasks may include: (a) the collection, storage, processing, analysis and exchange of information, in particular that forwarded by the authorities of the Member States or third countries or bodies; and (b) the coordination, organisation and implementation of investigative and operational action carried out jointly with the Member States' competent authorities or in the context of joint investigative teams, where appropriate in liaison with Eurojust. Any operational action by Europol must be carried out in liaison and in agreement with the authorities of the Member State or States whose territory is concerned (Article 88 TFEU).

    Europol's remit includes the fight against terrorism [Council Decision] and against serious forms of international crime [Council Decision]. The tasks of Europol include also the exchange and analysis of information and intelligence relating to illicit drug trafficking, trafficking in nuclear substances, clandestine immigration networks, traffic in human beings and illicit vehicle trafficking [Joint Action 96/748]. The Court of Justice has jurisdiction, under certain conditions, to give preliminary rulings on the interpretation of the Europol Convention. The Director of Europol is authorised to enter into negotiations on agreements with third States and non-EU related bodies [Decision of 27 March 2000 amended by Decision 2005/169].

    The European Union Agency for Law Enforcement Training (CEPOL)  supports, develops, implements and coordinates training for law enforcement officials, while putting particular emphasis on the protection of human rights and fundamental freedoms in the context of law enforcement, in particular in the areas of prevention of and fight against serious crime affecting two or more Member States and terrorism [Regulation 2015/2219].

    In order to combat crimes affecting the financial interests of the Union, the Council, by means of regulations adopted in accordance with a special legislative procedure (unanimity and consent of the European Parliament), may establish a European Public Prosecutor's Office from Eurojust. In the absence of unanimity in the Council, a group of at least nine Member States may request that the draft regulation be referred to the European Council. In that case, the procedure in the Council is suspended. Within four months of this suspension, in case of disagreement, at least nine Member States may declare their intention to proceed to the establishment of enhanced cooperation on the basis of the draft regulation concerned. The European Council may, acting unanimously after obtaining the consent of the European Parliament, extend the powers of the European Public Prosecutor's Office to include serious crime having a cross-border dimension (Article 86 TFEU).

    A European crime prevention network (EUCPN) aims to organise cooperation between the Member States in the areas mentioned at Tampere (juvenile, urban and drug-related crime), to collect and analyse information and good practice, and to advise the Council and the Commission [Decision 2009/902]. Mechanisms were created for the exchange of information between criminal records of the Member States [Framework Decision 2009/315]. Multinational teams were created to evaluate the application at national level of international acts and instruments in the fight against organised crime [Joint Action 97/827]. Joint investigation teams between the competent authorities of two or more Member States can be created for a limited period in order to carry out criminal investigations [Framework Decision 2002/465]. A secretariat was set up for the joint supervisory data-protection bodies established by the Europol and Schengen conventions [Decision 2000/641]. Various instruments have been adopted with a view to intensifying the fight against all forms of crime, notably: the exchange of DNA analysis results [Resolution of 9 June 1997]; a Directory of specialised competencies, skills and expertise to facilitate cooperation between the Member States [Joint Action 96/747] and a similar Directory for the purposes of counter-terrorist cooperation [Joint Action 96/610]. Cooperation between liaison officers posted by the law enforcement agencies of the Member States to third countries and international organisations is intended to make the best possible use of Member States' resources [Decision 2003/170]. A Framework Decision simplifies the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union [Framework Decision 2006/960/JHA].

    A Directive lays down the rules relating to the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security [Directive 2016/680]. Another Directive lays down rules concerning the right to information of suspects or accused persons, relating to their rights in criminal proceedings and to the accusation against them and the right to information of persons subject to a European Arrest Warrant [Directive 2012/13]. Another Directive strengthens certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings [Directive 2016/343]. EU procedural safeguards aim to ensure that children, meaning persons under the age of 18, who are suspects or accused persons in criminal proceedings, are able to understand and follow those proceedings and to exercise their right to a fair trial, and to prevent children from re-offending and foster their social integration [Directive 2016/800].

    The European arrest warrant and harmonised surrender procedures replaced the system of extradition between Member States [Framework Decision 2002/584]. When the judicial authority of a Member State issues a decision requesting the surrender of a person, this decision should henceforth be recognised by the judicial authorities of the other Member States ipso facto and with a limited number of grounds for refusal. Victims in criminal proceedings are assisted when the crime has been committed in a different Member State from the one in which the victim lives [Directive 2012/29]. In the course of criminal proceedings in a Member State, previous convictions handed down against the same person for different facts in other Member States, are taken into account [Framework Decision 2008/675] and conflicts of exercise of jurisdiction in criminal proceedings should be prevented [Framework Decision 2009/948]. A European evidence warrant (EEW) can be issued by a competent authority of a Member State for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters [Framework Decision 2008/978]. A European Investigation Order (EIO) may be issued for the purpose of having one or several specific investigative measure(s) carried out in the State executing the EIO with a view to gathering evidence in criminal matters [Directive 2014/41]. A Directive lays down minimum rules concerning the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty [Directive 2013/48]. An intergovernmental cooperation aims at preventing and combating cross-border vehicle crime, paying particular attention to the links between vehicle theft and the illegal car trade and forms of organised crime such as trafficking in drugs, firearms and human beings [Decision 2004/919].

    The principle of mutual recognition applies to financial penalties [Framework Decision 2005/214], to custodial sentences or measures involving deprivation of liberty [Framework Decision 2008/909], to decisions on supervision measures as an alternative to provisional detention [Framework Decision 2009/829] and to probation measures and alternative sanctions [Framework Decision 2008/947]. A Member State should recognise and execute in its territory orders freezing property or evidence issued by a judicial authority of another Member State in connection with criminal proceedings [Framework Decision 2003/577].

    The common policy concerning drug trafficking deals with: the prevention and detection of illicit cultivation and production of drugs within the EU [Council Resolution]; sentencing for serious illicit drug-trafficking [Council Resolution]; the manufacture and the placing on the market of certain substances used as drug precursors [Regulation 273/2004, last amended by Regulation 2015/1011]; and the monitoring of trade between the EC/EU and third countries in drug precursors [Regulation 111/2005, last amended by Regulation 2015/1011]. The European Drug Monitoring Centre and the European Information Network on Drugs and Drug Addiction (Reitox) assist national authorities in the fight against drugs [Regulation 1920/2006, see section 13.5.8]. Legislation on the fight against drug trafficking is harmonised, by establishing minimum common provisions relating to the constituent elements of criminal acts and to penalties [Framework Decision 2004/757]. Intergovernmental joint actions for combating drugs concern: the approximation of the laws and practices of the Member States to combat drug addiction and drug trafficking [Joint action 96/750]; the exchange of information on the chemical profiling of drugs; cooperation between the customs authorities and business organisations [Joint Action 96/699]; the collection of customs and police information in the fight against drug trafficking[Joint Action 97/372]; and information exchange, risk assessment and control of new psychoactive substances [Decision 2005/387].

    Police cooperation and mutual judicial assistance in combating organised crime entails: a common definition of a criminal organisation and a common approach to making participation in such an organisation a criminal offence [Framework Decision 2008/841]; the creation of a European Judicial Network [Decision 2008/976]; the exchange of liaison magistrates [Joint Action 96/277]; and the surveillance in the territory of another Member State as a necessary part of a criminal investigation in the context of the Schengen agreement [Decision 2003/725]. A Directive aims at combating the sexual exploitation of children and child pornography [Directive 2011/92]. A Directive defines offences concerning trafficking in human beings for purposes of labour exploitation or sexual exploitation and lays down penalties applicable to persons committing such offences [Directive 2011/36]. A framework decision aims to ensure that all Member States have effective rules governing the confiscation of proceeds from crime [Framework Decision 2005/212]. Each Member State shall set up or designate a national Asset Recovery Office, for the purposes of the facilitation of the tracing and identification of proceeds of crime and other crime related property [Decision 2007/845]. The control of the acquisition and possession of weapons is part of the common policy on the fight against crime [Directive 91/477]. The EU supports the development of a global reporting mechanism on illicit small arms and light weapons and other illicit conventional weapons and ammunition to reduce the risk of their illicit trade [Decision 2013/698]. A joint action aims at strengthening the practical application of the 1990 Council of Europe Convention on money-laundering, search, seizure and confiscation of the proceeds from crime [Joint Action 98/699], while a Framework Decision aims to abolish certain reservations in respect of the "1990 Convention" in order to increase penalties and to improve the processing of requests for mutual assistance between the Member States [Framework Decision 2001/500] [see also section 6.7]. A system for State compensation to the victims of serious crimes committed on the territory of any Member State facilitates access to compensation for such victims (notably victims of terrorism) regardless of their nationality [Directive 2004/80]. A Directive establishes minimum rules on the freezing of property with a view to possible subsequent confiscation and on the confiscation of property in criminal matters [Directive 2014/42].

    A Directive sets out rules allowing a judicial or equivalent authority in a Member State, in which a protection measure has been adopted with a view to protecting a person against a criminal act by another person which may endanger his life, physical or psychological integrity, dignity, personal liberty or sexual integrity, to issue a European protection order enabling a competent authority in another Member State to continue the protection of the person in the territory of that other Member State [Directive 2011/99]. Ireland and Denmark are not bound by this Directive.

    A framework decision aims to ensure that both active and passive corruption in the private sector are criminal offences in all Member States, that legal persons may also be held responsible for such offences, and that the offences incur effective, proportionate and dissuasive penalties[Framework Decision 2003/568]. A network of contact points was set up in order to improve cooperation between authorities and agencies of the Member States in preventing and combating corruption [Decision 2008/852]. All fraud involving non-cash means of payment (payment instruments, computers and specifically adapted devices) is recognised as a criminal offence and mechanisms are put in place for cooperation between the Member States to prosecute such offences efficiently [Framework Decision 2001/413]. A framework decision aims to approximate the criminal law of the Member States in respect of attacks against information systems and ensure that such attacks are punishable in all Member States by effective, proportionate and dissuasive penalties [Framework Decision 2005/222].

    A Regulation establishes an instrument for financial support for police cooperation, preventing and combating crime, and crisis management as part of the Internal Security Fund (2014-2020) [Regulation 513/2014]. The general objective of the Instrument is to contribute to ensuring a high level of security in the Union. Its specific objectives are: (a) crime prevention, combating cross-border, serious and organised crime including terrorism, and reinforcing coordination and cooperation between law enforcement authorities and other national authorities of Member States, including with Europol or other relevant Union bodies, and with relevant third countries and international organisations; and (b)  enhancing the capacity of Member States and the Union for managing effectively security-related risks and crises, and preparing for and protecting people and critical infrastructure against terrorist attacks and other security-related incidents.

    The EU supports the drawing-up of the proposed United Nations convention against organised crime [Joint Position 1999/235] and the effective functioning of the International Criminal Court (ICC) [Decision 2011/168]. The EU and ICC have signed an agreement on cooperation and assistance [Decision 2006/313]. A European network of contact points provides on request any available information that may be relevant in the context of investigations into genocide, crimes against humanity and war crimes [Decision 2002/494]. Member States cooperate in the investigation and prosecution of persons accused of having committed or participated in genocide, crimes against humanity or war crimes as defined in the Statute of the International Criminal Court [Decision 2003/335]. The EU regrets the American decision not to ratify the convention and to give US personnel exemption from the jurisdiction of the ICC. However, two Agreements on international cooperation in criminal matters, one on extradition and one on mutual legal assistance, have been concluded between the European Union and the United States of America [Decision 2009/820]. Moreover a general Agreement between the United States of America and the European Union aim on the protection of personal information relating to the prevention, investigation, detection, and prosecution of criminal offences [Agreement USA-EU]. The EU has also an agreement on mutual legal assistance in criminal matters with Japan [Decision 2010/88 and agreement].

    Police and judicial cooperation in criminal matters has made much progress, since the inception of this policy in 1991, concerning in particular the fight against organised crime by: the approximation of substantive criminal law; the mutual recognition of judgments and judicial decisions; the common definition of offences relating to participation in a criminal organisation; and the obligation of the Member States to impose penalties corresponding to the seriousness of those offences [Framework Decision 2008/841].

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