INTERNATIONAL COOPERATION AGAINSTTRANSNATIONAL ORGANIZED CRIME: THE PRACTICAL
EXPERIENCE OF THE EUROPEAN UNION
Matti Joutsen*
I. DEVELOPING
COUNTERMEASURES AGAINSTTRANSNATIONAL ORGANIZEDCRIME: HOW FAR CAN WE GO?
As long as crime and organized crime
remained domestic issues, the history ofi nte r na tio n a l la w e nf o r ce m e n t an d
j ud icia l co o p er a tio n p ro ce e d ed a t aleisurely pace. Many years passed fromw hen private policem en a nd priva tesecurity companies were first used tocollect evidence and apprehend offenders
abroad, to when the first formal
a rra ngemen ts w ere made for law
enforcement cooperation. Initiatives forformal judicial co-operation arrangements
emerged even more slow ly. The firstmodern mu ltila teral trea ties oncooperation in criminal matters did notappear until less than fifty years ago.
It is thus all the more remarkable howmuch progress has been made world-wide
during the last few years.
It is true that we had a right to expect
a qualitative change in our response tocrime and international crime. After all,
we are facing considerable increases incrime as a result of many factors. These
factors include developm ents intechnology, transportation andtelecommunications, the social changes
related to m assive im poverishme nt,
natural disasters and internal conflict,the establishme nt of re gio nal trad e* Director, International Affairs
Ministry of Justice, Finland394

gro up ings re m ov ing ba r rie rs to the
movement of people, goods, services andc a p it a l, a n d f u n d a m e n t a l p o li t ic a lchanges in many parts of the world.
Nonetheless, it would have required avisionary to have said, only five years
ago, that in the year 2001:
•

•
•

•

over 120 countries would have signed
a w ide-ranging globa l conventiona ga i nst t ra n s na t i ona l or ga nize dcrime;
work is underway on a global
convention against corruption;a controversial campaign against offshore and on-shore financial centres
en ga ge d in m on e y la und e rin g isleading to significant results; andregional cooperation is evolving
rapidly in pl aces as diver se as
Southern Africa, the Andes countries,
the countries around the Baltic Sea,and Southeast Asia.

How far and how fast can thisintensification of global cooperation go?
One way to try to answer this question
would be to look at existing cooperation
on a smaller scale, and see if it could be
expanded w orld-wide. The Europea nUnion countries provide one useful pointo f re f e r e nc e . I f c o o p e r a t i o n c a n b edeveloped among these fifteen countries,
with their quite different legal systems
and different criminal justice structures,
it can be at least visualised elsewhere.
This paper looks at police cooperation,p r o s e c u to ri a l c o o p e r a t io n, ju d i c ia l

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
co op era tion, and co op era tion in theformulation of domestic law and policy. In
each case, the present status quo in mostparts of the world will be set out, andthen the practical reality in the European
Union will be described.
A f e w w o rd s a b o u t t he E u r o p e a n
Union. It consists of fifteen Member
States, comprising almost all of Western
Europe. (In addition, ten Central andEastern European countries, and Malta
and Cyprus are negotiating on
membership.) One important area ofcooperation is know n as “justice andhome affairs”, which to a large extent
deals with the control of organized crime.
Decisions in this sector are made by theEuropean Union Council, which consistsof the respective Ministers from each
Member State.1 The Council can adopt socalled framework decisions (formerly
k n o w n a s “ jo i n t a c ti o n s” ) , c o m m o npositions, resolutions, recommendations
and conventions. “Framework decisions”
a re binding in re sp ect of their goal,
although each Member State has someflexibility on how to amend its legislationin order to ensure that this goal is met.
“Joint positions” are used, for example, in
negotiations with third States and intergovernmental organizations; Member
States are required to adhere to any joint
p osition agr ee d to . Re solutions an dr e c o m m e n d a t io n s a re n o n - b in d i ng ,although they do express a political goal.
C onventions are bind ing on thesig natories, an d th ere is political
1

To avoid some confusion: the European Union and
the Council of Europe are different organizations.
The former consists of fifteen Member States, andas noted covers most of Western Europe. Its top
decision-making body is called the European
Council of Ministers, or the European Council for
short. The Council of Europe, in turn, today haspressure on all Member States to signthem.
A second major decision-making bodyin the European Union is theCommission, which has responsibilities
in particular for deciding on the economic
integration of the European Union. It
does not have any powers to decide on“justice and home affairs”, although it
does have the right of initiative. A third
power is the directly elected European
Parlia ment, which ha s a right to b e
consulted , a lso on justice a nd hom eaffairs.
II. POLICE COOPERATION
The global status quo:
The general rule around the world isthat law enforcement personnel do nothave powers outside of their jurisdiction.
N o tice s a re co m m u ni ca t e d t hr ou gh
Interpol. A few countries have posted
liaison officers abroad, and informal
contacts are used on an ad hoc basis.
Otherwise, officially, information may not
and is not exchanged except throughformal bilateral channels, and even then
only in a few cases. Coordination of crossbor der investigation s is rare, andrequires considerable preparation
through formal channels.
The European Union reality:• an international organization, Europol,
co-ordinates cross-border investigations,and seeks to provide support to domestic
law enforcement services in specialist
fields.
• a network of liaison officers has beendeveloped.
• Europol produces annual situation
reports on organized crime, bringing
together data from all Member
States.

43 Member States, and c overs almost all ofEurope, East and West, North and South.

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RESOURCE MATERIAL SERIES No. 59
Within the framework of the Schengenconventions, which apply to almost all
EU Member States,
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•
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the Schengen information systema ll ow s na t io na l l aw e nforce ment
agencies to share data on many key
issues almost instantaneously with
their colleagues in other countries.
The system extends to some 50,000
terminals in the member states.
law enforcement authorities are allowed
hot pursuit across borders.
law enforcement authorities are allowed
to engage in surveillance in the territoryof other countries.
law enforcement authorities are allowed
to engage in controlled delivery.

A. Europol
Europol was established in October
1 99 8 , when the E urop ol Convention
entered into force among the fifteen
E u ro p ea n U n ion c ou ntr ies . It is aninternational organization that has its
h e a d q u a r t e r s in t h e H a g ue , in t h e
N etherlands. I t is not a t present an
operational entity. It is not, for example,
a “European Bureau of Investigations”,
w ith age n ts m a nd a te d to ca r r y o ut
investigations or to arrest suspects in the
different European Union countries.
The objective of Europol is essentially“to im prove ... the effectiveness andcooperation of the competent authorities
in the Member States in preventing andcom bating terrorism, unlaw ful d rug
trafficking and other serious forms ofinternationa l crim e where there arefactual indications than an organizedcriminal structure is involved and two or
more Member States are affected by theforms of crime in question in such a way
as to require a common approach by theM e m b e r S t a t e s o w in g t o t he sc a l e ,significance and consequences of theoffences concerned.”

396

Europol is charged, more specifically,wi th a ct in g to p r e v e n t a nd co m b a t
unlawful drug trafficking, trafficking in
nucle ar and rad ioa ctive sub stances,illegal immigrant smuggling, trade in
human beings and motor vehicle crime.
A f t e r E u r o p o l’ s e s t a b l i s h m e n t , i t s
mandate has been successively expanded,
to include for example crimes committed
or likely to be committed in the course of
terrorist activities, and money
laundering. Proposals are now being
considered to extend the mandate evenfurther, for example to the forgery ofmoney and means of payment.
The principal tasks of Europol consistof:
1. facilitating the exchange of information between the Member States,
2. obtaining, collating and analysing
information and intelligence (including the preparation of annual reports
on organized crime),
3. notifying the competent authorities ofthe Member States of information
concerning them and of any
connection s identified between
criminal offences,
4. aiding investigations in the Member
States by forwarding all relevant
information to the national units, and5. obtaining a computerized system ofcollected information.
Europol is also charged with
developing specialist knowledge of theinvestigative procedures of the competentauthorities in the Member States andproviding advice on investigations, andwith providing strategic intelligence toassist with and promote the efficient andeffective use of the resources available atthe national level for operational
activities. For this purpose, Europol can
assist Member States through advice andresearch in training, the organization and119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSe quipme nt o f the a utho ritie s, crim e
prevention methods, and technical andf o r e n si c p o l i ce m e t h o d s a n d p o li c e
procedures.
Wo rk in progress. W ha t ab out the
future of Europol? In October 1999, soonafter the Europol Convention entered into
force, a special European Union Summit
was held in Tampere, Finland, to discuss,among other issues, further improvementof co operatio n in responding totransnational organized crime. In respectof Europol, the Tampere meetingconcluded, inter alia, that:••joint investigative teams should be
set up, as a first step , to comb at
tr a f f ic ki ng in d r ug s a n d h um a nbeings as well as terrorism.
Representatives of Europol should beallowed to participate, as appropriate,in such teams in a support capacity.
Europol’s role should be strengthenedby allowing it to receive operational
data from Member States andauthorising it to ask Member Statesto initiate, conduct or coordinate
in ve sti gatio n s o r to cr ea te j o int
investigative teams in certain areas ofcrime, while respecting systems of
judicial control in Member States.

I n Ma rch 2 00 0, a new a ction pla nagainst organized crime was adopted.2 It
contains a number of points regarding
Europol:•2

Europol could carry out studies ofpractice at national and Union leveland of their effectiveness, develop
c om m o n str a te gie s, p o licie s an dtactics, organize meetings, develop
and implement common action plans,
The Prevention and Control of Organized Crime:
A European Union Strategy for the beginning of
the new Millennium. See section V.C., below.

••

carry out strategic analyses, facilitate
the excha nge of inform ation a ndin t e ll i ge nc e , p r o v i d e a n a ly t ic a l
support for multilatera l nationa linvestigations, provide technical,t a cti ca l a nd l e ga l s u p po r t , o f f er
technical facilities, develop common
manuals, facilitate training, evaluate
results, and advise the competentauthorities of the Member States.
consideration should be given to thefeasibility of setting up a database ofpending investigations, making it
possible to avoid any overlap between
investigations and to involve several
European competent authorities inthe same investigation.
Europol should help in establishing a
research and documentation networkon cross-bord er crime, and inorganizing the collection, storage,
processing, analysis and exchange ofre l e va nt in f o r m at io n , in cl ud i ng
information held by law enforcement
services on reports on suspicious
financialtransactions.
Theestablishment of compatible criminal
intelligence systems among Member
States should be a long-term goal.

Europol is now up and running. Thereis a clea r ne ed fo r it in E uro pe . I ts
potential for developing strong
cooperation between the law enforcement
agencies of the fifteen different Member
States of the Europ ean U nion isimmense, and the pressures on it tosucceed are great. The experience of theEuropean Union shows that practical law
enforcement cooperation is possible also
within a formal structure.
B. Schengen
Due in part to the slowness with which
police cooperation was being developed
and to political differences of opinions
over the extent of this cooperation, some
European Union countries (originally,

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RESOURCE MATERIAL SERIES No. 59
Belgium, France, Germany, Luxembourg
and the Netherlands) decided on a “fasttrack” alternative. The result was the
Schengen Agreement of 1985 and the
Schengen Convention of 1990, which has
sought to eliminate internal frontier
controls, provide for more intensive police
cooperation, and establish a shared datasystem.
The “Schengen group” currently
consists of Austria, Belgium, Denmark,Finland, France, Germany, Greece, Italy,
Luxembourg, the Netherlands, Portugal,
S pa i n a nd S w ede n, a s we ll a s , fro moutside the EU, Iceland and Norway. 3
The United Kingdom and Ireland have
not joined, since they wish to retain
separate passport controls.
Police coo peration within theframework of Schengen includes crossborder supervision, “hot pursuit” acrossborders into the territory of a notherMember State; and controlled delivery(i.e. allowing a consignment of illegal
drugs to continue its journey in order tod isco ve r th e m odu s op era nd i of th e
offenders, or to identify the ultimate
recipients and their agents, in particular
the m ain of fende rs) . These f orms o f
cooperation have been hard-won: they did
n o t s e e th e li gh t o f d a y un ti l af te r
protracted negotiations betw een the
Governments concerned, and even thenthey have been hedged by a number ofrestrictions.
The need for Schengen arose with oneof the primary go als of econom ic
integration, the elimination of border3

The principal reason for the inclusion of Norway
and Iceland is that these two countries are part ofthe passport-free zone formed among the Nordic
countries. The other three Nordic countries,
Denmark, Finland and Sweden, are members of
the Schengen group.

398

controls on the transit of persons, goods,
ca p ital and se rv ice s. A ltho ugh th iselimination of border control undoubtedly
promotes trade and commerce, at thesame time it makes more difficult thetask of controlling the entry and exit byoffenders. In return for ending checks oninternal borders, the Schengen countries
a gr ee d o n the e sta b lis hm e nt o f the
Schengen Information System (SIS). Thisconsists of a central computer (inStrasbourg, France) linked to a national
computer in each country, and to a totalof some 50,000 terminals. When fully
operational, data entered into any one
computer (for example data on wanted
persons, undesirable aliens, persons to be
expelled or extradited, persons undersurveillance, and some stolen goods)
would immediately be copied to the othernat ional in formati on sys tems. A nelectronic mail system (SIRENE;
Supplementary Information Request at
th e N a t io na l E n tr y ) a ll o w s f o r th etransfer of additional information, suchas extradition requests and fingerprints.
Yet another data-connected acronym is
VISION, which refers to the “VisaI n q u i r y S y s te m in a n O p e n - b o r d e r
Network”.
The strength of the Schenge narrangements lies in the fact that they
allow for highly practical law
enforcement cooperation, at a level that is
unique in the world. At the same time,
the arrangements have been subjected to
criticism. Although the arrangements
have been made specifically to respond tothe opening of the borders between theco un trie s in q ue stio n, t he q u es tio nremains whether these arrangements are
s ti ll i n s u f f i c i e n t to r e s p o n d t o th eincreased mobility of offenders. Secondly,
the arrangem ents do not include a ll
European Union countries, while on theother hand they do include two non-EU
countries. This inevitably leads to some

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
practical difficulties. Third, since there isno supervisory court structure or any
effective parliamentary review ofSchengen decisions, it has been suggested
that human rights concerns will receive
less attention that the law enforcementp r ior itie s. ( O n t he o th e r ha n d, a ny
a ctions ta ken would necessa rily fallunder the jurisdiction of at least one ofth e S ch en gen c ou ntrie s, a nd so th ele gality of the ac tion co uld the n be
scrutinized under the appropriate
national law.)
C. Information Gathering andAnalysis
Law enforcement authorities worldwide would be among the first to agree
that a more proactive, intelligence-led
approach is needed to detect andinterrupt organized criminal activities,
apprehend the offenders, demolish thecriminal netwo rks, and seiz e andconfiscate the proceeds of crime.
Information is needed on the profile,m o tive s a n d m od us op er a ndi o f th e
offenders, the scope of and trends inorganized crime, the impact of organizedcrime on society, and the effectiveness of
the response to organized crime. This
information includes operational data
(data related to individual suspected andd e t ec te d c a s es ) a n d e m p iri ca l d a ta
(qualitativeandquantitative
criminological data).
Regrettably, on the global level thear ran gemen ts for th e exch ange of
operational and empirical data continue
to be ad hoc, between individual law
enforcement agencies or even individuals.
Such ad hoc arrangements also raise
concerns over whether or not domestic
legislation on data protection is being
followed. Implementation of the United
Natio ns
Convention
againstT ransnational O rganize d C rim e (inparticular articles 27 and 28) should

provide a firme r f ounda tion for thisexchange of data, but the Convention has
not yet entered into force.
Within the Europ ean Union
framework, on the other hand, several
arrangements are already in place forgathering and analysing data:••

4

a joint action adopted in 1996 deals
with the role of liaison officers. Theirfunction is specifically to focus on
information gathering. They are to“facilitate and expedite the collectionand exchange of information though
direct contacts with law enforcement
agencies and other comp etentauthorities in the host State”, and“co ntrib ute to the colle ctio n andexchange of information, particularlyof a strategic nature, which may be
used for the improved adjustment of
measures” to combat international
crime, including organized crime. So
far, over 300 liaison officers have beenposted by EU countries, and theywork in close cooperation with one
another.
Europol already produces annual
reports on organized crime based onda ta provided by M emb er States.
These annual reports are being usedin an attempt to define strategies.
Over the years, the quality and utilityof these annual reports have
improved, even though continued
work is needed to improve thevalidity, reliability and international
co m p a ra b il ity o f th e d a ta . 4 O n e
pa rti cu la r f ea t ure of t he a nn ua lreports is that they contain

The work on the annual situation reports is
pr i ma ri l y don e by a “Co nta ct and Suppo r t
Network” consisting of representatives of the law
enforcement authorities of the different Member
States.

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recommendations based on an
analysis of the data.
various decisions have been taken ont h e e x c h a n ge o f i n f o r m a ti o n o nspecific subjects. For example, a Joint
A ct io n a d o p t e d o n 2 0 M a y 1 9 9 7
requires the exchange of information
between law enforcement agencies
when potentially dangerous groups
are travelling from one Member State
to another in order to participate in
events.
the European Union has created anumber of financial programmes toencourage the closer involvement of
the academic and scientific world in
the analysis of organized crime.
a European police research network is
being established to act as ani n f o r m a t io n s o u r c e o n r e s e a r c h
results,otherdocum ented
exp eriences a nd good practice incrime control.
III. PROSECUTORIAL
COOPERATION

The global status quo:International contacts between
prosecutorial authorities are based on
bilateral and the few multilateral treaties
on mutual legal assistance. Informal
contacts are facilitated by theInternational Association of Prosecutors
and other, similar non-governmentalorganizations.
The European Union reality:• a special structure, the European
Judicial Network, has been set up to
p rom ote direct co ntacts b e tw e enprosecutors. The system involves
c o m p ute r iz e d link s b e t w e e n th e
M em b er S tates, and in tim e w ill
prob ably even a llow aut omatictr an slat io n an d tra nsm issi on o frequests.

•••

several European Union Member
States have posted liaison
magistrates abroad, with a specificmandate to facilitate responses torequests for extradition and mutual
legal assistance, and a more generalmandate to promote international
cooperation.
prosecutorial
andjudicial
cooperation is promoted also by directcontacts through the Schengenstructures.
aninternationalorganization,
Eurojust, is being set up to assist in
the coordination of the prosecution ofcross-border cases.

A. The European Judicial Networkand the Strengthening ofInformal Contacts
Am ong the grea test difficulties inextradition and mutual legal assistanceare the lack of information on how arequest should be formulated so that it
ca n rea dily be dealt w ith in anothercountry, and the lack of information onwhat p ro gre ss is be ing m a d e in therequested State in responding to therequest.
In those (rare) cases where thepractitioner personally knows his or her
counterpart in the other country,
inf orm a l c hanne ls ca n b e used. The
European Union has decided to create am o r e so li d b a s e f o r th e s e i n f o r m a lcontacts by establishing a “European
Judicial Network” (EJN).5 This networkco nsists primarily of the central
authorities responsible for international
judicial cooperation in criminal matters,
and of the judicial or other competentauthorities with specific responsibilities
with in the co n te xt of int er nati on a l
co operatio n. The EJN focuses o n
5

Joint Action of 29 June 1998. A similar structure
has been set up for cooperation in civil matters.

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119TH INTERNATIONAL TRAINING COURSE
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p rom oting coop era tio n in resp ect o fserious crime such as organized crime,
corruption, drug trafficking andterrorism.
The EJN is promoting cooperation in a
number of different ways. First of all, it
organizes regular meetings (at least threetimes a year) of representatives of thecontact points. These meetings havedealt, for example, with case studies,ge nera l p olicy issues, and p ractic alproblems. Organizing the meetings in the
different EU Member States provides anadditional benefit: the host country canpresent its syste m for international
cooperation, and the participants can get
to know one another. Both factors areimportant in instilling confidence in one
another’s criminal justice system.
Second, the EJN is preparing various
tools for practitioners. One very useful
tool is a CD-rom that provides
practitioners with information on whattypes of assistance can be requested inthediff erent
MemberStates( se q u es tra t ion of a sse ts , e le ctr on ic
surveillance and so on) for what types ofoffences, how to request it, and whom tocontact. The CD-rom also contains the
texts of relative international
instruments and national legislation. A
second tool is a computerized “atlas” of
the authorities in the different Member
States, which shows who is competent to
do what in the different Member States inrelation to international cooperation.
Soon, the contact points in all fifteen
Member States will be connected with
one another by a secure computer linkthat can be used not only to follow up on
requests, but even to send the requests
themselves.

d e v e l o p i n g a s y st e m f o r a ut o m a t ic
translation of these requests, at first atleast into the major European languages.
B. Liaison Magistrates
The concept of the liaison magistrate isbased on the positive experiences withthe growing network of liaison officers
used to promote cooperation between law
enforcement agencies. In law
enforcement, the lia ison officer uses
direct contacts to facilitate and expedite
the international collection and exchange
of information, in particular informationof a strategic nature.6
The liaison magistrate is• an official with special expertise in
judicial cooperation,• who has been posted in another State,• on the basis of bilateral or
multilateral arrangements,• in order to increase the speed andeffectiveness of judicial cooperationand facilitate better m utual
understanding between the legal andjud icial syste ms of the State s inquestion.7
The liaison magistrate does not haveany extraterritorial powers, and also
otherwise must fully resp ect thesovereignty and territorial integrity of
the host State.8

6

The recent Treaty of Amsterdam of the European
Union (article 30(2)(d)) called on the European
Co u nc i l t o “pr o mo te l i ai so n a rr a n gem e nts
betw een prose cuti ng/inve stigating officials
specialising in the fight against organized crimein close cooperation with Europol”. In order tocreate a basis for the development of this work, on
22 April 1996, the European Council adopted a

A third tool is a uniform model forrequests for mutual legal assistance.
Consideration is currently being given to

Joint Action on a framework for the exchange ofliaison magistrates t o improve judicial
cooperation.

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RESOURCE MATERIAL SERIES No. 59
Liaison magistrates are—so far—usedalmost solely by the European Union
countries. In general, liaison magistrates
are sent to countries with which there is a“high traffic” in req uests for mutual
assistance, and where differences in legal
systems have caused delays. France hasb een the mo st a ctive in sending o ut
liaison magistrates, and has sent themnot only to Germany, Italy, theN e ther la nd s, Sp ain and the U nite dKingdom, but also outside the European
Union, to the Czech Republic and theUnited States. France is also considering
sending a joint liaison magistrate to theBaltic countries (Estonia, Latvia and
Lithuania).
Several other E uropean Union
countries have sent one or two liaison
m agistrates: the United K ingdom toFrance and Italy; Italy to France (and isconsidering sending one to Spain and theUnited Kingdom); the Netherlands also to
France (and is considering sending one to7

A related concept is that of the legal attache, who
is posted in the mission of the sending State tolook after legal issues in general that concern thehost State and the sending State. Reference canal so b e ma de to te mp ora ry excha nge s ofpe r so nn el , w h ic h ar e de si gne d to i nc r e as e
familiarity with one another’s legal system andthe United States); Finland to Estonia(and is considering sending one to theRussian Federation); Germany to France;
and Spain to Portugal.9
L ia is o n m a g is tr a te s w o r k o n th e
general level (by promoting the exchange
of information and statistics and seeking
to identify problems and possible
solutions) and on the individual level (bygivin g lega l a nd p ra ctica l a dvice toauthorities of their own State and of thehost State on how requests for mutual
assistance should best be formulated inorder to e nsure a timely and properre sp o n se , a nd by tr yin g to id e nt if yc o nt a c t p e r s o ns w h o m i gh t he l p i n
expediting matters). The exact profile of
the work of the liaison magistrate varies,
depending on such factors as the types ofcases, and the extent to which there are
dire ct contacts b etw een the judicia lauthorities of the two States.
The advantages, from the point of viewof the sending State and the host State,
are numerous. Language problems are
reduced, requests for judicial co-operation
can be discussed already before they aresent in order to identify possible
pr oblems, an d there is a basis forpromoting trust and confidence in one
another’s legal system.

foster direct, informal contacts. Neither legal
attaches or personnel on temporary exchange,
however, have the same expertise and job profileas the liaison magistrate.
8See, for example, P.B. Heymann, Two Models of
National Attitudes Towards International Coop era tio n i n L aw En fo rce m en t, H arva rd
International Law Journal, vol. 31, p. 99, andAlastair Browne, Towards a Prosecutorial Modelfor Mutual Assistance in Criminal Matters?, inPeter J. Cullen and William C. Gillmore (eds.),
Cr i m e s a ns F r o nti e r e s : In te r n a ti on a l a nd

C. Eurojust: A Formal Structure for
Prosecutorial Coordination
Even the direct contacts and expertiseprovided by the EJN and the liaison
magistrates cannot always provide thetype of coordination needed ininvestigating transnational organizedc r im e . O v e r r e c e n t y e a r s , th e id e agradually evolved of setting up a separate
entity, somewhat comparable to Europol
in the law enforcement field, toEuropean Legal Approaches, Hume Papers on
Public Policy, vol. 6, nos. 1 and 2, Edinburgh
University Press, Edinburgh 1998.

402

9

From outside the European Union, Estonia hassent a liaison magistrate to Finland.

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
coordinate national prosecuting
authorities and support investigations ofserious organized crime extending into
two or more Member States.10
The idea for the establishment of suchan entity received a considerable push at
the special European Union Summit heldin Tampere, Finland in October 1999. At
the Summit, everyone was agreed on theneed for such a new entity. However,there appeared to be different opinions
regarding what the precise mandate ofEurojust should be, and how it should go
about doing its work.
The Tampere meeting decided thatthese questions should be solved by theend of 2001—a rather tight schedule, but
o n e wh ic h r e m a in s f e as ibl e . I n th e
meantime, a temporary unit, called “ProE urojust” (short for “Pro visional
Eurojust”) started work in Brussels in
March 2001.
The way in which the work of Pro
E u ro ju st is ev o lving p r o vid e s so m eindicators of how Eurojust itself will work
once it begins operations. Each Member
State has sent a senior prosecutor or
magistrate to Brussels on permanent
assignment. These representatives meet
every week to discuss both individual
cases and general policy for coordinating
investigations. Plenary meetings tend to
be devoted to policy issues, while mostc a s e s w ill b e d e alt wi th i n s m al le r
meetings, among representatives of only
the individual countries involved.
Pro Eurojust itself does not have any
operational powers. Instead, the national
representatives, having agreed on whatneeds to be done, contact the competentauthorities in their own Member State forthe re quired action. In add ition,individual members of Pro Eurojust may
have operational powers according totheir national legislation. One of the
topics now being debated is what type ofoperational powers Eurojust itself will
have. For example, it may be able to ask a
M e m b e r S t a t e t o i n i t ia t e c r i m i n a lproceedings or to provide Eurojust withdata regarding the case.11
IV. JUDICIAL COOPERATION
The global status quo:
Mutual legal assistance andextradition are based on an incomplete
patchwork of bilateral treaties and, inrare cases, multilateral treaties. These
treaties tend to cover only some offences,and offer only limited measures. Requests
must be sent through a central authority.
The proce dure tends to b e slow a nd
uncertain, w ith requests often being
frustrated by bureaucratic inertia, broad
grounds for refusal, and differences incriminal and procedural law.
The European Union reality:• all European Union Member States
are parties to b roa d multilate ra ltreaties on mutual legal assistanceand extradition.
• the European Union has decided onstandards of good practice in mutual
le g a l a s s i s t a n c e , a n d r e g u l a r ly
reviews compliance with thesestandards.
• separate European Union treaties onm u t u a l l e g a l a ss i s ta n c e a n d o n
11 In order for Eurojust to have the power to ask for

data, considerable attention will have to be pay todata protection, for example, on how data are to
be transmitted, on who has access to the data, on

10 See Hans G. Nilsson, Eurojust—the Beginning orc onfiden tia lity, a nd on the ma intenanc e o f

the End of the European Public Prosecutor? inpersonal records. In this respect, the laws of theEuroparattslig Tidskrift, vol. 4, 2000

different Member States remain quite different.

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RESOURCE MATERIAL SERIES No. 59••

e xtradition ha ve bee n drafted to
update and supplement the existing
multilateral treaties prepared withinth e f ra m e w or k o f th e C o un cil o f
Europe.
the European Union is now moving
towards a system of mutual
recognition of decisions andjudgments in criminal matters. When
this system is in place, cooperation
will be speeded up considerably: adecision or judgment in any Member
State can be enforced as such in any
other Member State.
a mutual evaluation system has been
established, in which experts fromdifferent countries assess thepractical conduct of international
cooperation in the target country.

A. Mutual Legal Assistance
The Member States of the European
Union are all parties to the 1959 Councilof Europ e Convention on Mutual
Assistance in Criminal Matters.
The 1959 Convention, however, wasdrafted almost a half century ago. Sincet h e n , i d e a s r e g a r d i n g h o w m u tu a lassistance sho uld be p rovid ed havec han ged co nside rably, esp ec ially inEurope, where there has been extensive
experience in this sector. There has beena clear trend towards simplifying and
spe eding up mu tual assis tan ce byeliminating conditions and grounds forre fusa ls. Since the E uro pea n Union
Member States have a lot of cases incommon, they have come to expect certain
standards of conduct—after all, if thecentral authority of one country is itself
slow or sloppy in responding to requests,
it can scarcely expect others to be betterw he n respo nding to its re que sts f orassistance.
In 1998, the European Union decided
to a d o pt a se t o f sta nd a rd s o n go o d404

practice in mutual legal assistance. 12
Ea ch Me mber S tate w as req uire d toprepare, in one year’s time, a national
statement of good practice. These werethen circulated among all the Member
S ta te s. Th e id e a he r e w a s t ha t t he
Mem ber States publicly commit
themselves to upholding these standards,
and can be held accountable.
The sets of standards include at least
the following eight points:
a. to acknowledge all urgent requests
and written enquiries unless a
substantive reply is sent quickly;
b. when acknowledging requests andinquiries, to provide the name andcontact details of the authority (and,if possible, the person) responsible for
executing the request;
c. to give priority to requests which havebeen marked “urgent”;
d. where the assistance requested
cannot be provided in whole or inpart, to provide an explanation and,
where possible, to offer to discuss how
the difficulties might be overcome;e. where it appears that the assistancecannot fully be provided within any
deadline set, and this will impair
proceedings in the requesting State,
to advise the requesting State of this;f. to submit requests as soon as theprecise assistance that is needed has
been identified, and to explain thereasons for marking a request a s“urgent” or in setting a deadline;
g. to ensure that requests are submitted
in co m p lianc e w ith the re le van t
treaty or arrangements; andh. when submitting requests, to provide
the requested authorities with thena m e a nd c o nt a c t d e ta ils o f t he

12 Joint Action of 29 June 1998 on good practice inmutual legal assistance in criminal matters.

119TH INTERNATIONAL TRAINING COURSE
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authority (and, if possible, the person)
responsible for issuing the request.

••

Although some of these points may
seem trivial, they all have an immediate
impact on the day-to-day work of judicial
authorities involved in international
cases.

•••

The fifteen European Union countries
have prepared their own Mutual
Assistance Convention (adopted on 29
May 2000). This is not intended to be an
independent treaty, but instead
supplements the 1959 Council of Europe
convention and its protocol. It brings
the se e a rlier tre a ties up to d a te byreflecting not only the “good practices”
referred to above, but also thedevelopment of investigative techniques
and arrangements. 13 Given that thisC onventio n and the United Na tions
C o n v e n t i o n a g a i n s t T r a n sn a t io n a l
Organized Crime were negotiated at thes a m e t im e , it sh o uld no t c om e a s asurprise that they share many ideas.
For example, the new European Union
Convention includes provisions that deal
with:
•
•
•
•
•

the sending of procedural documents
directly to the recipient in anotherState (article 5);
the sending of requests by telefax ande-mail (article 6);
thespontaneous
exchangeofinformation (article 7);
restitution of property to its rightful
owner (article 8);
temporary transfer of persons held incustody for purposes of investigation(article 9);

13 In May 2001, political agreement was reached ona protocol to the 2000 Convention, which would
simplify mutual assistance even further. The
proposal is currently under consideration.

••

hearing by videoconference (article
10);
hearing of witnesses and experts bytelephone conference (article 11);the use of controlled deliveries (article
12);
the use of joint investigative teams(article 13);
the use of covert investigations(article 14);interception of telecommunications(articles 17 to 22); andthe protection of personal data
provided in response to a request(article 23).

In particular the provisions on theinterception of telecommunications arequite lengthy, and were the subject ofextensive deb ate. Different Mem ber
States have different provisions on theconditions under which the interceptionof telecommu nications is allowed.
However, given the ease w ith w hichpeople can now move from one country in
the European Union to another, andgiven also the ease with which
co m m u n ic a t io ns c a n b e tr a c e d a n dlistened to, this presumably will become
an increasingly important issue, and thetime spent on it was undoubtedly wellspent. The basic solution in this respect
was to allow interception, but to keep theauthorities in the countries in question
informed.
The Convention brings in some other
innovations. Perhaps the mostinteresting one is that it reverses one
fundamental principle in mutual legal
assistance. Today, the almost universal
rule is that the law applicable to the
execution of the request is that of therequested State. The new Convention
states that the requested State mustcom ply with the formalities andprocedures expressly indicated by therequesting Member State. The requested

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RESOURCE MATERIAL SERIES No. 59
Member State may refuse to do so only ifcompliance would be contra ry to thefundamental principles of law of therequested State.
B. Extradition
The Member States of the European
Union are all parties to the 1957 Councilof Europe Convention on Extradition.
Also here, the Member States of theEuropean U nion have sought tosupplement the Council of Europe
C o nv e nt io n b y d r a f tin g n e w t re a ty
obligations. In 1995, the European Uniona d opte d a Co nventio n o n simp lif ie dextradition within the EU. Essentially,
the Convention focuses on the many cases
where the person in question consents to
extradition. One year later, in 1996, theEuropean Union adopted a Convention on
the substantive requirements for
extradition within the European Union.14

In advance of any decision on “fasttrack extradition”, Spain and Italy havesigned a bilateral treaty on this type of
extradition, and the United Kingdom is
introducing legislation along the samelines.
The Spanish-Italian treaty applies topersons suspected of or convicted forterrorism, organized crim e, drugtrafficking, arms trafficking, trafficking
in huma n b ei ngs o r s exua l ab use ofminors, where the maximum sentence is
at least four years. A copy of the court
order is to be sent directly to the Ministryof Justice of the other country, whichtranslates it and sends it without delay
for enforcement. What is noticeable hereis that the procedure does not call for any
court hearings at all. The only grounds
for refusal are if the documentation is notin order, or the person in question has
been granted immunity for some reason.

The E ur op e an U nion is curr ently
considering various options for “fast-track
extradition”. These discussions have been
held within the context of the discussion
on mutual recognition of decisions andj u d gm e n t s in c r im in a l m a t te r s. I n
regards to extradition, the goal is to havea warrant of arrest issued by thec o m p e te n t a u th o ri tie s o f o n e S ta t e
recognized as such by the authorities ofanother EU State, establishing a basis for
extradition. A proposal on such a
procedure is expected by the end of theyear 2001.

The United Kingdom proposal is for a“backing of warrants” scheme.15 The UK
already today uses such a “backing of
w a rra nts” a p pro a ch w ith I rela nd . 1 6
Under this approach, the extradition
request is replaced by a simple arrest
warrant, which is transmitted throughthe Home Office to the local court. The
local court only has to establish (1) thatthe person arrested is the person forwhom extradition is sought; (2) that the
warrant
andaccompanying
documentation a re in o rd er; and ( 3)w he th e r a n y o f th e r e st r ic t io ns o n
extradition apply.17 If none of these are abar to extradition, the court simply notes

14 This 1995 Convention has been ratified by nine of

15 The Law on Extradition: A Review. Home Office,the fifteen Member States: Austria, Denmark,Finland, Germany, Greece, the Netherlands,

March 2001, London.
16 Similararrangements exist among Belgium,

Portu gal , S pa in an d Swe d en . T he 1 99 6

Luxembo ur g and the Ne therlands. The five

Conventio n has bee n ra tified b y D enm ar k,

Nordic countries—Denmark, Finland, Iceland,

Finland, Germany, Greece, the Netherlands,

Norway and Sweden—also have a fast-track

Portugal and Spain.

extradition scheme among themselves.

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119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
on the back of the warrant that this canbe enforced.
A ccord ing to the U K pro posa l thebacking of warrants scheme would coverextradition requests from all European
Union countries as well as from Iceland,
Liechtenstein and Norway (referred to as“tier one” countries). It can be extended toother extraditio n partners, as
appropriate. For “tier tw o” and “tierthre e” co untr ie s, cer ta in a dd itio nal
conditions should be m et: double
criminality; the political offence
exception; the passage of time has notmade it unjust or oppressive to extradite;whether the basis of the extradition is aconviction imposed i n absentia; a ndwhether the offence is a military offence
that is not also an offence under thegeneral criminal law.
From the point of view of the United
Kingdom, all remaining states, “tier four”
states, would be subject to the prima facier e q u i r e m e n t . T h i s m e a n s t h a t th e
authorities of these countries should
demonstrate, to the satisfaction of the UK
autho rities, that the re is suf f ic ient
evidence of the guilt of the person inquestion to proceed with theextradition.18

be frozen, or that his or her house be
se arche d fo r evidence , mutua l lega lassistance has to be requested in order tohave the decision carried out abroad. The
process inevitably takes some time—time
during which the suspect can empty out
his or her bank accounts and move on to athird country.
So far, little attention has been paid towhat can, in a way, be seen as a parallel
to mutual legal assistance: recognising
the validity of a decision taken by aforeign authority or court, and enforcing
it as such. The principle would enable
competent authorities to quickly secure
evidence, seize assets and immobilize
offenders. This would, of course, also bein the interests of the victim.19
Internationally, mutual recognition offoreign decisions and judgments is almost
18 The United Kingdom has waived the prima facier eq uir em en t w i th all States Par ties to the
Eu r op ea n Co nve nti o n o n Extr ad iti o n a nd ,following an amendment to the Scheme in 1981,
with all partners in the Commonwealth Scheme.
For the United States, in turn, demonstration of“probable cause” is currently sufficient. See., e.g.,
Gully-Hart, Paul (1992), Loss of Time ThroughFo rm al an d Proce dural Re qu irem en ts inInternational Co-operation, in Eser, Albin and

C. Mutual Recognition of Decisions
and Judgments
Because of jurisdictional limits (andp e r h a p s a l so a d e e p - r o o t e d la c k o f
confidence in the criminal justice systemsof other countries), decisions made in theinvestigation of organized crime cannot
be directly enforced abroad. For example,
if a court in one country orders that asuspect be arrested, that his or her assets

Otto Lagodny (eds.) (1 992 ), Pr incipl es a nd
Procedures for a New Transnational Criminal
L a w . D o c u m e n t a ti o n o f a n I n t e r n a t i o n a lWorkshop 1991. Beitrage und Materialien aus
dem Max-Planck-Institut fur auslandisches undinternationales Strafrecht, Freiburg im Breisgau,
pp. 245–266, at p. 256–257.
19 Protecting the interests of the victim is one of thepriorities of the European Union. On 15 March
2001, a framework decision was adopted on inorder to ensure victims uniform minimum legal

17 Therearetwoconditions:theoffenceisprotections in criminal proceedings. In September

punishable by at least a minimum of twelve

2001, the Commission submitted a proposal on

months in the requesting State, and the non bis

unification of compensation to victims from thein idem principle is satisfied.

State.

407

RESOURCE MATERIAL SERIES No. 59
non-existent. There are few bilateral or
multilateral treaties on this topic. One of
the few is the European Convention on
the International Validity of Criminal
Judgments, prep ared within theframework of the Council of Europe in
1 97 0. E ve n t his trea t y ha s very few
signatures,
and
even
fewer
ratifications.20 Indeed, most EU Member
States have not ratified it, and so it hasvery little practical importance.
Furthermore, this only applies to legally
final judgments, and not for example tod e ci si o ns m a d e in th e c o ur s e o f a n
investigation.21
With the increasing integration ofEurope, Member States are now seriously
considering the potential for mutual
recognition of decisions and judgments. It
is widely regarded as an effective andind ee d almo st un av oid able too l incooperation. Furthermore, proponents
a rgue tha t the close ties a m ong theEuropean Union countries, and the factthat they are all signatories to the 1950
European Convention for the Protectiono f Hum a n Righ ts a nd Fu nda m en tal
Freedoms, ha s lead to a situa tion inwhich all Member States should have full
faith and confidence in the operation of
20 Of

the European Union Member States, only

Austria, Denmark, the Netherlands, Spain and
Sweden have ratified the 1970 Convention. The
other countries that have ratified it are Cyprus,
Estonia, Iceland, Lithuania, Norway, Romania
and Turkey. An additional eleven countries havethe cr im inal justice syste m in ea c hother’s country. To give an example, if a
judge in one country orders that a suspectshould be arrested, courts in all other
European Union countries should haveconfidence that the decision was madeaccording to law and with due respect tohuman rights.22
As a result, the Tampere European
Summit in October 1999 endorsed theprinciple of mutual recognition and called
for the preparation of a programme togradually make mutual recognition aw o r k ing re a lity . I n th e v ie w of t he
Tampere Summit, mutual recognition
should become the cornerstone of judicial
co-operation in both civil and criminal
matters within the European Union. The
programme requested by the Tampere
Summit was adopted on 30 November
2000.
There is currently discussion in the EU
about w hether the system of mutual
recognition should allow refusals, forexample on the grounds that the humanrights of the person in question had not
been
sufficiently
taken
into
consideration. Some regard such a “failsafe” system as necessary, while othersc o n s i d e r t h a t th e E u r o p e a n U n i o nmember states should have confidence
that other member states respect theEuropean Convention on Human Rights.
Another item of discussion is whether thecondition of double criminality should bemaintained.

signed, but not yet ratified, the Convention.
21 Thereis one further exception to the lack ofmutual recognition internationally. The five
Nordic countries (Denmark, Finland, Iceland,

22 An analogy can be made with the “full faith and

Norway and Sweden) recognize one another’s

credit” doctrine contained in article IV, section 1

decisions and judgments, and refusals are almosto f t he Co n s t i t u ti o n o f th e U n i t e d St a te s .

unheard of. This system is based on the fact that

According to this section, “Full faith and credit

the Nordic countries share very much the same

shall be given in each State to the public acts,

legal system, and also otherwise have long-records and judicial proceedings of every otherstanding cooperation with one another.

State.”

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119TH INTERNATIONAL TRAINING COURSE
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Work in progress: In February 2001,
Belgium, France and Sweden submitted a
proposal regarding the mutual
recognition of decisions on the freezing ofproperty and of evidence. The goal is toadopt a decision on this by the end of
2001. In July 2001, the European Unionb e g a n c o n si d e r i ng a p r o p o s a l f r o mFrance, Sweden and the United Kingdom
regarding the mutual recognition of fines.
In March 2001, Germany has a somewhat
parallel proposal to this latter one on
f ines. A prop osal is expected on themutual recognition of pre-trial orders ininvestigations into computer crime. The
programme of work adopted in November
2000 also contains measures in regard to
the tra nsf er o f p ro secu tion a nd th e
excha nge of inform ation on criminal
records; work on these may begin in theyear 2002 or 2003. Work is also plannedon w ays to avoid double jeop ardy inconnection with mutual recognition.
D. Mutual Evaluations
The Member States of the European
Union have made a number ofcommitments to improving their response
to organized crime, and to improving
international cooperation. These
commitments were undoubtedly made ingood faith. However, the practical realityof investigation, pro secution andadjudication (for example, lack ofresources, and differences in priorities indifferent sectors and on different levels)
can mean that the work that is actually
carried out remains at odds with thecommitments.
One way to diagnose what problems
exist is to carry out expert reviews. The
OECD has instituted a system of mutual
evaluations of Mem ber States on
measures taken to prevent and control
money laundering. These evaluations arecarried out by teams of experts fromdifferent countries who, because of theirbackground, are able to talk as colleagues
with experts and practitioners in thetarget country, and ask the rightquestions and understand the answers
they are given. This approach has been
deemed so successful that the European
Union has adopted it on a broader scale.
Accordingly, on 5 December 1997 theEuropean Union decided on theestablishment of a mech anism forevaluating the application andimplementation at the national level ofinternational undertakings in the fightagainst organized crime.
Following the OEC D model, small
teams of experts visit the target country,
interview practitioners, report on theirassessment and make recommendations.
The assessment is confidential,23 and thetarget country is given every opportunity
to correct any errors that may have been
made.
So far, two rounds of evaluations havebeen carried out in all fifteen Member
States. The first round dealt with mutual
legal assistance and urgent requests forthe tracing and restraint of property, andthe second round dealt with law
enforcement and its role in the fightagainst drug trafficking. A third round,which will deal with extradition, will soon
begin.
The Member States are quite satisfied
w it h th e w a y i n w h ic h t h e m u t u a levaluations have been carried out. The
pr oce ss h as no t o nly c ontr ibute d to
greater understanding of the differencesthat exist between the countries, but has
also lead to many changes in law andpractice.

23 With the permission of the country in question,

the report can be published. Indeed, all of thereports so far have in fact been published.

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V. COOPERATION IN THE
FORMULATION OF DOMESTICLAW AND POLICY
The global status quo:
I nt e rn a ti o na l co o p e r a t io n o n th e
formulation of domestic law and policy is
a l m o s t e n t i r e l y l i m it e d to g e n e r a lprovisions in bilateral and multilateralt r e a ti e s, a n d t o e ve n m o r e g e ne r a l
r e c o m m e n d a t i o n s , r e so lu t i o n s a n ddeclarations.
The European Union reality:• the European Union has accepted
decisions calling for criminalisation of
a number of offences. The definitions
are generally rather tightly drawn,
and have forced countries to amend
their legislation accordingly.
• the European Union has begun
co o pe ra tion in th e pr eve ntion o fcrime, including organized crime.
• the European Union has adopted anumber of action plans andprogrammes that have had a clear
effect on policy and practice in all theMember States.
• the cooperation in this regard has
been extended to the twelve candidate
countries, which are rapidly
amending their own procedural andcriminal laws.
• there are signs that the European
Union may be moving towards what
is called the “communitisation” ofcrimina l law, in other w ords to asituation where the po wer todetermine the contents of criminal
law is increasingly shifted from theindividua l Me mb er S tates to thefifteen Member States wo rking
together.
A. Criminalisation
On the glob al level, in the area of
substantive criminal law , very little
international cooperation exists. Where it

410

does exist, it primarily concerns the very
few substantive provisions in bilateraland multilateral treaties, such as theminimum definitions of participation in acriminal organization, corruption, money
laundering and obstruction of justice inthe United Nations Convention against
Transnational Organized Crime. There
are also a num ber of resolutions,re c o m m e n d a t i o ns a n d d e c la ra ti o n sregarding criminal law and criminal
justice, but these have tended to havelittle actual impact on law, practice andpolicy.
This is not the case with the European
Union, where there is not only extensive
discussion about the harmonisation ofboth criminal and procedural law, butmuch has been done in practice.
The question of how far the criminallaw (and procedural law) of the Member
States should be harmonised is a subjectof considerable controversy. Everyone
appears to agree that some degree of
harmonisation is necessary in order toensure smooth international cooperation,
as long as by “harmonisation” one means
the approximation or co-ordination ofdifferent legal provisions or systems byeliminating major differences andcr ea tin g min im um r e q uire m e nts or
standards. To use a musical analogy, we
can continue to play our national music,
as long as it is in harmony with the musicof the other fourteen Member States.
Everyone also appears to agree that at
this stage at least we are not talking
about the unification of criminal andprocedural law, in the sense that the
fifteen distinct legal systems would be
re p la ce d b y o ne syste m . T o use themusical analogy, no one supports the ideaof replacing the orchestra with a single
piano, no matter how beautiful or large.

119TH INTERNATIONAL TRAINING COURSE
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The process so far has involved a focus
on certain key issues, where the Member
S tates have agreed that harmonised
legislation is necessary. Among the issues
dealt with are the following:
Fraud and counterfeiting• fraud and other crimes against thefinancialinterestsoftheCommunities (Convention of 26 July
1995, protocols of 27 September 1996
and 19 June 1997)24• fraud and counterfeiting of non-cash
means of payment (frameworkdecision on 28–29 May 2001)• counterfeiting of the euro (frameworkdecision on 28–29 May 2001)
Drug trafficking• illicit cultivation and production ofd r ug s ( C o un c il R e s o lu tio n o f 2 2
November 1996)• “drug tourism” (Council Resolution of
22 November 1996)• sentencing for serious illicit drugtrafficking (Council Resolution of 6
December 1996)• drug addiction and drug trafficking(Joint Action of 9 December 1996)
T r a f f i c k i n g i n p e r s o n s a n d r el a t e doffences• trafficking in human beings andsexual exploitation of children (Joint
Action of 21 January 1997)• combating illegal immigration (Council
recommendation of 22 December 1995)
Corruption• corruption (Convention signed on 26
May 1997)• corruption in the private sector (Joint
Action of 22 December 1998)
24 In

May 2001, the Commission proposed ana m a l ga m a t i o n o f t h e va r i o u s C o n ve n t i o nprovisions relating to fraud against the financial
interests of the EU.

Other offences• racism and xenophobia (Joint Actionof 15 July 1996)• football hooliganism (Council Resolutionof 28 May 1997)• money laundering (Joint Action of 3
December 1998)• arms trafficking (Council Recommendation of 7 December 1998)• participation in a criminal organization (Joint Action of 21 December
1998)
Procedural issues• interception of telecommunications(Council Resolution of 17 January
1995)• protection of witnesses in the fightagainst international organized crime(Council Resolution of 23 November
1995)• individuals who cooperate with thejudicial process in the fight againstinternational organized crime(Council Resolution of 20 December
1996)
Work in progress. The work on further
harmonisation of criminal and procedural
law in the European Union is proceedingon the priority areas identified at theTampere European Summit in October
1999. Work is underway for example on
the m inimum p rovisions on theconstituent elements of offences andpenalties relating to drug trafficking, on
the sexual exploitation of children andchild pornography, and on racism andxenophobia. A Commission proposal on
the constituent elements and penalties
relating to ter rorism is e xp ecte d in
October 2001, and another proposal on
cyber-crime and other high-tech crime isexpected tow ards the end of 2001. A
considerable amount of attention has also
been focused on money laundering, andon the freezing of the assets of offenders.
For example, a framework decision on

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RESOURCE MATERIAL SERIES No. 59
m oney laundering and on theidentification, tracing, freezing or seizure,and confiscation of the instrumentalities
and proceeds of crime was adopted on 26
June 2001.
O n e g e n e r a l p r io r i ty a r e a i s t h eprotection of the financial interests of theEuropean Union, for example against
subsidy fraud, embezz lement andcorruption. Here, there is a much furtherreaching proposal, called the “Corpus
Juris” project.25 Briefly, this project seeks
not only to harmonise the definition of
offences against the financial interests ofthe European Union, but also to set up a
E uropean Public Prosecutor system,
using identical procedural law provisions
in each Member State. Proponents havesaid that this degree of uniformity isnecessary to prevent organized criminalgroups from utilising differences between
the Member States. Critics, in turn, see
this as an attempt to create asupranational criminal law andprocedural law, which in time may lead tothe unification referred to above.
Th e Corpu s J uris project raises
broader issues of ho w far the
harmonisation of criminalisations can go,
and who can make the decisions.
Questions of criminal law have so far
always been reserved to the Member
States themselves to decide, on the basisof consensus. Article 31(e) of the Treaty of
Amsterdam gave the Commission a rightof initiative in these matters. The exact
implication of article 31(e), however, hasbeen questioned. Most Member States areo f the v iew th a t the C o m m issio n islimited to the right of initiative, and only
the Member States themselves may makea n y d e c i si o n o n c r i m in a li s a t io n. A
25 See http://www.law.uu.nl/wiarda/corpus/

engelsdx.html The project was first presented on
17–18 April 1997.

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minority, however, are of the view that
article 31(e) in effect gives theCommission the right to oblige Member
S t a te s t o a d op t crim in al i s a t i on s o ncertain issues, if criminal law sanctions
are the only way to protect Community
interests. The issue is still open. So far, aworking compromise has been reached:decisions under article 31(e) are being
made in tandem, with the Commission
taking a decision on matters within its
power, and the Member States (throughthe Council) taking a decision at the sametime on matters within their powers.
B. The Prevention of Organized
Crime
Organized crime, just as is the casewith crime in general, does not spread at
random. It is often a planned andd e li b e r a te a ct iv ity . A c co r d i ng ly , i tdepends to a great deal on the presence of
motivated offenders, on the existence ofthe opportunity for crime, and on theorientation of the work of those who seek
to control organized crime. In line withthis so-called situational approach, theMember States are exploring ways toensure that committing crime is mademore difficult, that committing crime
involves greater risks to the offender (inpa rtic ula r the risk of d etection a ndapprehension), and that the possible
benefits to the offender of committing
crime are decreased or eliminated.
Also the Tampere European Summit
stressed the importance of crime
prevention. It suggested that common
crime prevention priorities should be
developed and identified. Elements forthe crime prevention policy are containedin the Council resolution of 21 December
199 8 on the prevention of organizedcrime. In March 2001, the Commission
and Europol presented a report on aEuropean strategy on the prevention oforganized crime.

119TH INTERNATIONAL TRAINING COURSE
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One step in developing and identifying
priorities was made on 15 March 2001,
when the European Union decided on theestablishment of a crime prevention
network. This network consists of contact
points in each M ember State,
representing not only the authorities but
also civil society, the business community
and researchers. The network functions
by organizing meetings, compiling a
database and otherwise by seeking togather and analyse data on effective
crime prevention measures on the local
and regional level in order to disseminate
information on “good practices.”
C. European Union Policies andProgrammes
The various measures listed above andthat have been taken by the European
Union did not come piecemeal, one byone. Instead, they are elements of a wider
EU policy against organized crime. A
critical step was taken on 16–17 June
1997, when the European Union adopted
a Plan of Action to combat organizedcrime. Instead of the resolutions,recommendations and declarations thatha ve so ofte n been a dop ted in otherf o r a — r e g r e t t a b ly o f t e n w i t h l i t t l epractical impact—the European Union
decided, for the first time anywhere, on
specific action, with a clear division of
responsibilities, a clear timetable and amechanism for implementing the action
plan. The strong consensus reached by
M e m b er S t a t es on t he 1 9 9 7 P la n o f
Action helped to create the political andprofessional climate required on both the
EU level and the national level to takeand implement the necessary decisions.
The 1997 Plan of Action changed therate of the evolution of international
cooperation against organized crime.
Examples of the progress that has beena chie ved a re the mut ua l e valuat i on
mechanism, the entry into force of theEuropol Convention, the establishment of
the European Judicial N etwork,
crimina lisation of participa tion in acriminal organisation, the establishmentof a variety of funds to support specificmeasures, the adoption of joint actions onmoney laundering, asset tracing, andgood practices in mutual assistance, thepre-accession pact with the candidate
co untr ie s, a nd the id e ntif ica t ion o f
f u rt h e r m e a su r e s in r e s p e c t o f th e
prevention of organized crime.
The period allotted for the 1997 Plan of
Actio n end ed on 3 1 De cem ber 19 9 9.
However, more work needed to be done.
When Finland held the Presidency of theEuropean Union during the second half of1999, it led discussions on the necessary
follow-up plan. These discussions were
given added push by the decision to holda special Summit, the Tampere European
Council (15–16 October 1999), which
dealt with, among other issues, crossborder crime.
Among the priorities identified by theTampere European Summit are:
•
•
•
•
•
•
•

the prevention and control of crime
through the reduction of opportunities;
the facilitation of co-operation between
Member States in criminal matters;
co-ordination and, where appropriate,
centralisationofcriminal
proceedings;
protection of the rights of victims andthe provision of assistance;development of operational police cooperation and law enforcemen t
training at the EU level;
enhancement of customs co-operationin the fight against crime and in theuse of information technology;
the fostering of international cooperatio n in the fight against
transnational organized crime;

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RESOURCE MATERIAL SERIES No. 59••

reinforcement of the role of Europol;
adoption of a common approachthroughout the EU on cross-bordercrime;
depriving criminals of the proceeds ofcrime; andenhancing knowledge and capacity tofight money laundering activities.

••

These various priorities—known in theEuropean U nion as the “Tampere
m il e s t o n e s ” — s e t o u t a f a i r ly c l e a r
programme for the European Union forth e y ear s to c om e . M or e d e tail wasprovided by the follow-up to the 1997
P la n of A ctio n tha t w a s w ork ed out
during the Finnish Presidency of theEuropean Union, and adopted in March
2000.26 The core of the document consistso f e le v e n c ha p te r s th a t s e t o u t th ep o l itic a l g ui d e lin e s, t he r e sp e c tiv e
m a n d a t e s a n d in i t i a ti v e s, a n d t h edetailed recommendations. Specific forms
o f c ri m e tha t a r e t he f o c us i nc lu d eeconomic crime; money laundering andoff-shore centres; terrorism; computer
crime; and urban crime and youth crime.
D. Cooperation with Candidate
Countries and Other Third
Countries
Even if the European Union Member
States could effectively develop their laws
and syste ms to pre ve nt and co ntrol
organized crime within their borders, thiswould not be enough. Preventing andcontrolling organized crime requires
global co-operation.
One particular focus is cooperation
with the so-called candidate countries.
The European Union is currently
negotiating actively with twelve countries

on membership. In December 1999, theEuropean Union decided in addition tostart preparations for the extension ofthis process to Turkey. Enlargement onsuch a scale, from fifteen Member States
to 28, will constitute not so much an
evolutionary step for the EU as a leap
into the unknown. Institutions, interests,
policies, balances of power: everything
will change. The European Union is facedwith a political challenge of the firstorder.
In this process, considerable attention
is being p aid to the p rev ention andcontrol of organized crime. The European
U n i o n h a s a l r e a d y a d o p t e d a l a r ge
number of measures (referred to as theac qu is co mm unautaire),27 and theMember States have implemented themin their domestic legislation and practice.
In o rd er to a vo id a situa tion w he reorganiz ed criminal groups takeadvantage of a sudden expansion of theEuro pean Union, a lso the candida teco untries m ust fully accept andimplement the acquis. To this end, on 28
May 1998 the European Union has madea so-called pre-accession pact with thecandidate countries on how the process
should be carried out. Considerable work
is underway multilaterally andb i l a t e r a l l y t o a s s is t t h e c a n d id a t e
countries in this work.
A second focus is the RussianFederation. Again during the Finnish
Presidency, a special European Union
Action Plan was prepared on common
action with the Russian Federation on
com b a ting orga niz ed cr im e. T his inessence sets up a structure and process
27 The26 The“acquis communautaire” can be loosely

new plan of action is known as “Thedescribed as the legislation of the European

Prevention and Control of Organized Crime: A

Union. It consists not only of the Treaties and all

European Union Strategy for the beginning of the

EU legislation, but also of the judgments of the

new Millennium.”

Court of Justice and joint actions.

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119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
for continuous consultations andcooperation between the European Unionand the Russian Federation. In addition,
there is a broad er “partnership”
agreement with the Russian Federation(and with Ukraine) that provides a basis
for cooperation.
Other geographical areas with whichth e Eu ropean Union is s eeking t ostre ngthen co-o peration includ e theMediterranean, South Eastern Europe,
China, North America, Latin America
and the Caribbean.
The European Union is also active inw orking through intergove rnme ntal
organizations such as the Council ofEurope and the United Na tions. For
example, throughout the negotiations on
the United Nations Convention against
Transna tional Organized Crime, theEuropean Union countries worked very
closely together in seeking to ensure thatthe resulting Convention was as effective
and broad as possible.
VI. LESSONS TO BE LEARNEDAs can be seen, the European Union
has put into place an enormous numberof measures in only a few years in order
to better prevent and control organizedcrime. The strengths of the European
Union in international criminal justice lie
in the considerable political pressure andinterest in cooperation, as a result of
which consensus will often be found even
if som e countries initia lly resist thepressure to change their criminal policy.
In this connection, two questions cometo mind. Have the measures actually
been effective in p reventing andcontrolling organized crime? And if theEuropean Union has been successful, canthe progress made within the European
Union be repeated elsewhere?

Whether or not the European Union
has improved its effectiveness in
responding to organized crime can, ofcourse, be debated. It is difficulty to show
a clear cause-and-effect relationship. For
example, it is misleading to try to judge
effectiveness against organized crime by
an increase in the number of arrests,
prosecutions or convictions. To a large
extent, organized crime remains hidden.
Evaluation of progress remains difficult.
When the present plan of action w as
being drafted, the Finnish Presidency
wanted to include indicators ofp e r f o rm a n ce , m e a su r e s t ha t w o u ld
provide a more precise tool for evaluating
how effective we have been in
implementation. Regrettably, it proved to
be impossible to incorporate such anelement into the plan of action. As long as
we have no way of assessing the true
extent of organized crime, or of its impact
on society, it is almost useless to
speculate if, for example, the creation ofEuropol or Eurojust has had an impact onorganized crime in Europe.
On the other hand, it is possible to sayfrom the practitioner’s point of view thatcooperation has been made more effective
and easier. The creation of Europol has
clearly improved cooperation among law
enforcement authorities, just a s thecreation of th e European Judicial
N e tw o r k , t he i ns ti tu ti o n o f l ia i so n
ma gistra tes and the crea tion of Pro
Eurojust have streamlined cooperation
among prosecutors. Information can bereceived more quickly and analysed more
effectively, and the response can be mademore promptly.
The networking that is taking place inthe European Union has also increased
the degree to which practitioners know
about, a nd have confidence in, one’s
another criminal justice system. Also thismakes cooperation more effective.

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Can the developments in the European
Union be replicated elsewhere?
There are undeniably certain featureso f the E uro pe an U nion which ma k e
progress easier than may be the caseelsewhere. One is the existing structure
for decision-making. Without the Council
and the various networks, it would be
difficult if not impossible to get sovereigncountries to agree on measures which
ma y have at least the appearance of
infringements on sovereignty: examples
include the setting up of such formal
structures as Europol and Eurojust, theadoption of decisions on theharmonization of key legislation, anddecisions related to mutual recognition ofdecisions and judgments. A second factor
which eases progress in the European
Union is the fact that the Member States
have worked closely together for a longtime, and have come to understand and,to at least a modest degree, have faithand confidence in one another’s criminal
justice system.
Nonetheless, many elements of theEuropeanUnion
resp onsetotransnational organized crime can, and infact are, being implemented elsewhere.
The European Union has had the benefitof experience with far-reachingcooperation, and has learned
considerably from experience what works
and what does not work. As shown in thene go tia tions on the Unite d Na tions
C o n v e n t i o n a g a i n s t T r a n s na t io n a l
Organized C rime, the practicalexperience among the European Union
Member States has often served as a
guide for other countries and regions.
Examples are the “good practices” inm u tual le ga l ass istanc e , the use o f
v i d e o c o n f e r e n c e s i n t h e h e a ri n g o fwitnesses, the establishment of joint
investigative teams, and the use of liaison
officers.

416

We have come a long way from theperiod w hen countries ignored crime
beyond their borders. The speed withwhich the Eur op ea n U nio n M e mb er
States have agreed on cooperation, andthe commitment that is being shown on ahigh political level on implementation,
show that the Member States are very
mindful of the danger that organizedc r i m e p o s e s t o th e i n d iv id u a l , t h e
co mmunity, the country and theinternational community. Over the past
few years, there has been remarkable,
indeed unprecedented progress in thenational and international response toorganized crime, as shown by thestrengthening of the legislative
framework, the reorganisation of thecriminal justice system, the growing
network of bilateral and multilateralagreements, and the strengthening off o r m a l a n d in f o r m a l in t e r n a t i o n a lcontacts.
I n th e p r e ve n ti o n a n d c o n t r o l o forganized crime, we all still have a long
way to go. Nonetheless, the first steps
have been taken, and the experience inthe European Union can help in chartingout the possibilities as well as pitfalls on
the road ahead.