125TH INTERNATIONAL TRAINING COURSE
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DEVELOPMENTS IN MUTUAL LEGAL ASSISTANCE AND
EXTRADITION AT THE INTERNATIONAL LEVEL

Hans G. Nilsson *I. INTRODUCTION
Over the past 20 years, if not more, crime has evolved exponentially in the Member States of theUnited Nations and at the regional level. The nature of crime has also changed: from being confined only
to one country or region, crime has become international in its planning, perpetration and detection. The
level of seriousness of the crime has also increased and a number of committed offences can today bequalified as truly international in their very nature (drugs trafficking, terrorism, trafficking in humanbeings, illicit arms trafficking, and crime on the Internet etc.).
This development has required that the international legislator 1 take all necessary measures toenable international judicial cooperation to progress and become more efficient. Although many countries
have the possibility, under their Constitutions, to cooperate against crime on the basis of reciprocity,
experience has shown that a sound legal basis in a Convention is conducive to efficient cooperation
against crime. This is particularly true in the field of extradition but also to a large degree in mutual legal
assistance.
This development has lead to a number of initiatives to be taken in the past 15-20 years within the
United Nations or in regional organisations such as the Council of Europe, the OAS or, more recently, in
the European Union.
I propose in this paper to examine some of the developments that have taken place during this period,
both in the field of extradition and in mutual legal assistance. In order to limit the paper, I will restrict it toan examination of the most important developments and trends at the UN level, namely as regards the two
flagships of international cooperation that have been agreed at international level: the 1988 UN
Convention against trafficking in narcotic drugs and psychotropic substances, concluded on 19 December
1988 and the 2000 UN Convention against transnational organised crime. As regards the third flagship,
which has experienced so far the fate of the flying Dutchman, namely the draft UN Convention against
corruption, at the time of writing not yet concluded but where it may reasonably be presumed that it will
be concluded in December of this year, there is in principle no need to examine this draft, as it largely,
into the most minute detail, contains the same provisions as the Palermo Convention.

* Head of Division, Judicial Cooperation, Council of the European Union, Brussels. The opinions expressed are those of theauthor and not necessarily those of the Institution for which he works.
1

By this term, I am not only referring to the work of international or supranational organisations but also to the work carried out
at a bilateral level between two or more States.

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I will further examine some recent developments within the European Union, which may not be sowell known to an international audience as these developments concern only the 15 Member States of theEU, soon to become 25 as from 1 May 2004. But before explaining the set up of the EU in criminal
matters, I should first mention some matters concerning the Council of Europe - the oldest organisationthat has been dealing with cooperation in criminal matters in Europe since 1957 2.

II. COUNCIL OF EUROPE
At regional level in Europe, many important developments have taken place within the Council ofEurope, the Strasbourg based organisation with its now 45 Member States. Since 1957 it has developed
international instruments in the field of international cooperation in criminal matters, including the 1957
European Convention on Extradition, the 1959 European Convention on Mutual Legal Assistance in
Criminal Matters and the 1990 Convention3 on Laundering, Search, Seizure and Confiscation of theProceeds from Crime4.
The Council of Europe had until 1989 21 Member States, i.e. Western Europe. With the fall of the
Berlin Wall, its membership has gradually evolved until its most recent Member State- Croatia.
Since the membership includes both large States (with very different levels of development of Human
Rights and the Rule of Law) such as Germany, France, Russia and Ukraine, and small States (also withdifferent levels of development in certain aspects) such as Luxembourg, Malta, Liechtenstein andAndorra, the criminal law cooperation within this framework tends to become intergovernmental, andsometimes also a la carte with a number of possibilities of grounds for refusal and reservations in theconventions that have been drafted under its auspices.
A further complication, from this point of view, has been the recent tendency to allow States such as
the United States, to assist in the deliberations of the expert Committees drafting new instruments. At
least to my mind, although it must be welcomed in general that international cooperation in particular in
the field of cyber crime has a vocation to fight crime at a universal level, this has sometimes notfacilitated the difficult search for solutions that may be found between like minded-countries having
similar legal traditions or close ties in international cooperation. A particularly striking example has been
the previously mentioned 1990 Laundering Convention where large concessions were made to one nonEuropean country that participated in its drafting but which today, 13 years after its conclusion, has not
yet ratified this Convention. One may wonder whether it would not have been wiser to seek European
solutions to these problems and seek separate solutions instead with some non-European countries.

2

The Organisation was founded in 1949.

3

This Convention is not European since it is in principle also open to States that are not European as from its beginning - theUSA, Canada and Australia participated in its drafting, although only Australia has signed the Convention that has now 38
ratifications.

4

The Council of Europe has in total elaborated more than 20 international conventions in criminal matters and in total nearly
200 Conventions. Its most important achievement is the European Convention on Human Rights, setting up the unique systemof protection of human rights in Europe by the European Court of Human Rights.

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In this context, the recently concluded Convention on cyber crime must be mentioned as a particularlyinteresting example of a development that may have a real impact on international cooperation in the fightagainst crime in the particular area of computer crime and investigations into cyberspace.
From the Council of Europe experience, one must however also conclude that extradition and mutual
legal assistance remain the main tools in international cooperation; transfer of criminal proceedings andthe recognition and enforcement of criminal sanctions5 remain to a large extent theoretical possibilities
without any follow up in practice, even among countries that have close relations in criminal cooperationsuch as the Benelux countries or the Scandinavian countries. However, cooperation for purposes ofallowing the transfer of sentenced persons6 with a view to permitting them to reinsert in their own
societies has been more successful, although it has proven problematic with some countries, in particularoutside Europe that have been permitted to join this Convention.

III. EUROPEAN UNION
The developments within the European Union are much less well known than those within theCouncil of Europe by the international community. There are several reasons for this, but in particular it
should be mentioned that these developments are relatively recent (the Treaty of Maastricht entered into
force on 1 November 1993), they are unique to the world (a system of semi-supranational competencies
have been gradually put in place; the instruments drafted are binding on the Member States) and they
concern only the Member States of the EU which form part of an ever closer and integrated Union that defacto has its own legal personality7.
In view of these developments, it may be justified to describe in more detail to an international
audience these developments within the EU, since they have an impact on the most developed part ofEurope (the candidate States to the European Union have an obligation to implement the entirety of theUnion acquis), thus the 25 States and since they also have a potential to have an impact on other States in
Europe that have aspirations to become Member States of the European Union.
With the entry into force of the Treaty of Maastricht, the Union declared that judicial cooperation incriminal matters was an area of common interest for the Member States. This means already that themachinery of the EU could be used for purposes of developing criminal law within the framework of theInstitutions of the EU. The European Commission participated in the drafting of the new instruments, andhad even a right of initiative when it came to those relating to fraud (it took the initiative to what was tobecome the 1995 Convention of the fight against fraud for purposes of protecting the financial interests ofthe European Communities. The European Parliament was heard by the Council of Ministers that took all
the final decisions. The European Court of Justice had a limited role to interpret the instruments drafted
under the regime of the Treaty of Maastricht. Under this Treaty regime were however drafted a number of5

See the European Convention of 15 May 1972 on the Transfer of Proceedings in Criminal Matters and the European
Convention of 28 May 1970 on the International Validity of Criminal Judgments.

6

See the Convention of 23 March 1983 on the Transfer of Sentenced Persons.

7Viz. the recently signed, and binding on the Member States when concluded, treaties with the United States on extradition andon mutual legal assistance where the contracting parties are the United States of America and the European Union (and not its
Member States).

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Conventions (14) and so-called Joint Actions (instruments in principle binding on the governments but
which could have a somewhat weak legal status depending on the Member State concerned) on a numberof important topics: definition of the offence of participation in a criminal organisation, private
corruption, confiscation of the proceeds from crime, etc. In addition, the Council adopted so-called
Common Positions, instruments that define a position that the Member States are required to defend
during negotiations within international fora, such as the United Nations or the OECD.
Of particular importance were the two Conventions that were concluded on extradition in 1995 and1996 - see below. In the field of mutual legal assistance, an evaluation was undertaken on how mutual
legal assistance works in practice8 in the Member States, the European Judicial Network was set up and a
Joint Action was adopted on good practice in mutual legal assistance.
It turned out however that the legal instruments at the disposal of the EU did not match the objectivesof the political leaders of the Union. During the revision of the Treaty of Maastricht, the so-called third
pillar 9 became one of the areas where change was most radical. The Joint Actions were abolished andreplaced by Framework Decisions and Decisions, which are both binding on the Member States and arealso liable to be interpreted by the European Court of Justice under certain conditions. Framework
Decisions are used to harmonise substantive and procedural criminal law and Decisions for any otherpurpose. The European Commission has been given a full right of initiative in the same vein as theMember States and was also the body that took the formal initiative, after a decision by the Heads of Stateand Government, to the European Arrest Warrant that abolishes extradition among the Member Statessee below.
One of the reasons for these radical changes was that for the first time in matters of judicial and police
cooperation the Union had set itself an objective: the creation of a high level of safety within an Area of
freedom, security and justice. It should be remembered that in principle, among the Member States, there
are no more internal borders so that people may travel freely from one country to another. Law
enforcement and criminal law cooperation had however remained within the realm of sovereignty and theborders remained for this kind of cooperation. It could however now be said that the first steps towards
the creation of a single Area in certain matters have been taken since the entry into force of the revised
Treaty of Amsterdam on 1 May 1999.
Another reason for the radical changes was the widespread dissatisfaction with the unwieldy systemof slow negotiation and uncertain implementation of international conventions - an instrument that is used
for intergovernmental cooperation and not adapted to the closer ties that the Union is seeking to achieve.
Experience of the Union is that conventions take too long before they are implemented (the 1995 and1996 Conventions on extradition mentioned below have not yet been ratified by all Member States; only
by 13 of them) and the role of Union Institutions, in particular that of the Court of Justice, has not beendeveloped enough.

8

The reports are published on the Council s website at http://www.eu.ue.int.

9

Judicial cooperation in criminal and police matters; the second pillar is the Common Foreign and Security Policy of the Unionand the first pillar is the supranational part of the Union (i.e. the European Community) where the European Commission has
the sole right of initiative ( e.g. environment policy, transport, telecommunications, etc).

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As regards Framework Decisions and Decisions therefore, the Council can prescribe a specific periodof implementation and does also do that in practice - usually 18 months is taken as a normal period for
implementation and adaptation in legislation. The Member State that does not implement a Decision or a
Framework Decision within the prescribed period will be in breach of the Treaty (and of the
Framework/Decision which is binding). In practice, it could be said that the Union has abandoned the
instruments of conventions and will now only resort to these types of instruments which are more
powerful11.
After these brief explanations which are necessary to understand the institutional set up and the natureof the cooperation, I will now turn to the main topic of the paper.

IV. EXTRADITION/SURRENDER
A. At the level of the United Nations
When the 1988 UN drugs Convention was concluded, it was considered that this was an achievement
at international level which made extradition progress considerably. And this assessment must be
considered to be true, although one could also be somewhat more critical to some of the provisions of the1988 Convention. In particular, the 1988 Convention, like a number of its predecessors, does not containreal obligations to extradite - it is not a mini extradition convention which could be read as an extradition
treaty like, for instance, the 1957 Council of Europe Convention or the 1996 EU extradition Convention.
Only Article 6:2 creates certain indirect extradition obligations for the Parties in that a number of theoffences included in the Convention are deemed to be included in the extradition treaties applicablebetween the Parties. Perhaps the real difference is that the level of cooperation internationally was so low,
and was only limited to certain crimes (hijacking, kidnapping of internationally protected persons, takingof hostages, protection of nuclear material, torture and suppression of offences against maritime
navigation, etc.) that any progress on a more common crime such as drugs trafficking could be considered
to be real progress.
If one looks then at the Palermo Convention, which was concluded some twelve years after the 1988
Convention, when the international community had further understood the threat of serious crime, whentrafficking in human beings was rife and when illicit arms smuggling had become a phenomenon tocombat at the international level, one may note that surprisingly little progress has been made in the fieldof extradition - progress in this case meaning that the provisions on international cooperation should havebeen strengthened. In certain respects however, there in undeniably some progress, for instance in that theprotections of the individuals have been reinforced. A comparison will be carried out hereinafter.
The main achievement of the 1988 Convention is of course that it exists and that it has been widely
ratified by the international community of States. It was the first worldwide multilateral convention inwhich all existing instruments of international legal cooperation were recognised. Through Article 6 of
the Convention is established the legal basis for extradition in all kinds of serious drugs offences as well
as for money laundering where the predicate offence is drugs trafficking. A worldwide standard has thus
been established in this important field of law enforcement cooperation. As previously noted, drugs
offences are deemed to be included as extraditable offences in already existing treaties and the10

It should be noted that the new draft for a European Constitution, submitted to the European Council meeting in Thessaloniki
on 20 June 2003, suggests that these instruments should be replaced by European laws and European Framework laws. These
instruments will be equivalent to the current Directives and Regulations and will have direct effect.

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Convention may, in certain circumstances, be considered as a free standing legal basis for extraditioneven where there is no treaty relation.
Article 6:2 is particularly relevant to countries which still have a list of offences in their treaties
whereas it has no relevance to those countries operating a threshold approach. This article is retaken in
the Palermo Convention, Article 16:3. It is the same text that one finds there. However, the Palermo
Convention deals also with accessory extradition, which the 1988 Convention does not cover.
Extradition is not covered by the offences mentioned in Article 3:2 of the 1988 Convention, i.e. theConvention does not create extradition relations for the intentional illegal possession, purchase orcultivation of narcotic drugs for personal consumption, but it does cover all drugs trafficking offences andancillary offences such as preparatory or supportive acts, laundering of or dealing in the proceeds of drugs
offences and acts of instigation. The Palermo Convention goes further as to the scope of the offences as itcovers all the offences under the Convention and offences involving an organised criminal group and theperson who is the subject of the extradition request is located in the territory of the requested State,provided that there is double criminality.
Although the 1988 Convention harmonises to a certain extent the concept of drugs trafficking, itshould be noted that extradition is still subject to the concept of double criminality under article 6:5,
which provides that extradition remains subject to the conditions provided for by domestic law andapplicable extradition treaties. No doubt, such law will necessarily provide for the upholding of double
criminality principles which have been a cornerstone of extradition law for decades. The Palermo
Convention repeats in Article 16:7 these requirements and represents to some extent a step back in that it
makes a specific reference not only to the grounds of refusal mentioned in Article 6:5 of the 1988
Convention but also includes a specific reference to the minimum penalty requirement for extradition.
Interestingly, in the not yet concluded Corruption Convention, the Africa Group has insisted on
abolishing double criminality for mutual legal assistance11, thus making the final attempt to end thenegotiations in August of 2003, but without success. New negotiations will have to be carried out at theend of September 2003 but it is expected that the draft Convention will still be able to be finished by theend of this year and signed in Mexico.
Article 6:5 specifies that extradition remains subject to the conditions provided by the law of therequested Party or by applicable extradition treaties, including the grounds on which extradition may berefused. This paragraph should not be understood as allowing Parties to the Convention to invoke grounds
for refusal which may be provided for under domestic law, but which have not been included in theapplicable extradition treaties. In these cases, the Treaty will have to be applied fully, in accordance with
its text, notwithstanding provisions of the domestic law of the country concerned.
Article 6:6 contains a provision which could be considered to be jus cogens in extradition law, under
Article 53 of the Vienna Convention; namely that extradition may be refused where there are substantial
grounds for believing that compliance with the request would facilitate the prosecution or punishment ofany person on account of his race, religion, nationality or political opinions, or would cause prejudice forany of those reasons to any of the persons affected by the request.

11

Proposed Article 53 (9): Without prejudice to the fundamental principles of their domestic law, States Parties shall [to thegreatest extent possible] render mutual legal assistance in respect of offences covered by this convention, notwithstanding theabsence of dual criminality.

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The Palermo Convention has taken a different approach than the 1988 Convention which contains a
specific ground for refusal. Since it has to be recognised that the refusal would in any case have to bemade on the basis of jus cogens, the approach of the Palermo Convention in Article 16:14, which in myopinion is more legally correct, is to state that nothing in the Convention shall be interpreted as imposing
an obligation to extradite if the requested Party has substantial grounds for believing that the request has
been made for the purpose of prosecuting or punishing a person on account of that person s sex, race,
religion, nationality, ethnic origin or political opinions or that compliance with the request would cause
prejudice to that person s position for any one of these reasons.
It is here first of interest to note that there are new references in the Palermo Convention to a person s
sex and ethnic origin, a clear sign that society has developed since the 1980s, sometimes unfortunately
not in the right direction12. Moreover, the Palermo Convention now contains a specific reference also to
the right of a person against whom proceedings are being carried out to be guaranteed fair treatment at allstages of the proceedings (see Article 16:13). It may thus be noted that significant progress has been madein the Palermo Convention as regards the protection of individual liberties - something which was not in
principle so high up on the agenda in the 1980s.
There are also certain efforts made in the 1988 Convention to introduce exceptions to traditional
treaty law obligations exceptions in extradition. For instance, Article 3:10 of the Convention provides that
offences established in accordance with the Convention shall not be considered as fiscal offences,
political offences or regarded as politically motivated, without prejudice to constitutional limitations andfundamental domestic law of the Parties. This article may be particularly relevant to laundering offences
under Article 3 of the Convention.
One may wonder however, whether this could be considered to be a real achievement, as suchexceptions are usually contained in Constitutions or are considered to be part of fundamental domestic
legal principles. In any case, the mere fact of putting the issue on the table in an international convention
is already an achievement at the international level.
One may also note that during the negotiations of the 1988 Convention, attempts were made toaddress the problem of extradition of nationals. As is well known, common law countries extradite theirown nationals whereas civil law countries do not normally (except under certain circumstances, such as
when the enforcement of a possible sentence may be made in the extraditing country). However, theattempt to address the issue of extradition of nationals was not successful. Extradition of nationals is amatter of constitutional law in a number of countries and, as is well known, to change the constitution is atall order in several States. There is however a provision (article 6:10) that deals with the extradition ofnationals for purposes of enforcement of sentences. A similar provision is found in the Palermo
Convention, Article 16:12. The Palermo Convention however goes further in that it provides for a more
stringent legal regime than the 1988 Convention in relation to nationals whose cases have been submitted
to a competent national authority (see Article 16:10). Moreover, the Palermo Convention also contains
new provisions relating to those countries that may surrender persons only on condition that the person
will be returned to the surrendering State (Article 16:11).
One of the more innovative provisions of the 1988 Convention is article 6:7 which provides for acertain standard in relation to speeding up of extradition procedures or simplifying evidentiary
requirements. The paragraph in itself, however, is not very constraining upon the Parties. It merely

12Viz. ethnic cleansing in former Yugoslavia.

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requires to endeavour to speed up and simplify. However, since this is a most unusual clause even inbilateral extradition treaties, it may be seen as a recognition that extradition procedures are too long andunwieldy, and that evidentiary requirements, in particular prima facie and probable cause requirements
are to be simplified. Rather disappointedly, the Palermo Convention subjects the requirement of speed
also to the domestic law of the Party, which of course waters down the provision to nullity (see Article
16:8). It is unfortunate that the States do not consider the importance of reasonable speed in extradition as
an objective worthy to pursue. Negotiators of international instruments should consider that justice
delayed is justice denied . It is for such reasons in particular that the European Union adopted its Arrest
Warrant (see below).
Paragraph 8 concerning provisional arrest is relevant to those States that can extradite only on thebasis of a Treaty, and which may be willing to regard the 1988 Convention as the necessary legal basis forthat purpose. The paragraph gives such a legal basis, but makes a reference to domestic law which no
doubt will have to contain further specific rules as to the length of detention, etc. The Palermo
Convention contains similar language.
Paragraphs 9 and 10 of the 1988 Convention deal with the concept of aut dedere aut iudicare, either
extradite or try the person. Without going into the rather complicated scheme which must also be read in
conjunction with Article 4 on jurisdiction, one may note that these paragraphs, which were the result oflengthy negotiations, are a compromise between those that prioritise that fugitives shall not be able toescape justice by fleeing abroad, and those that place the emphasis rather on the prevention of possible
conflicts of jurisdiction. In principle, the result of the negotiations were that, when extradition is refused
to another Party to the Convention because the offence was committed within its own jurisdiction or by
one of its nationals, the Refusing Party has an obligation to exercise jurisdiction (i.e. to submit the caseto its competent authorities for the purpose of prosecution) over the (Article 3:1) offence.
The Palermo Convention contains new provisions also relating to fiscal matters and on a consultation
mechanism (Article 16:15 and 16).
Finally, Article 6 of the 1988 Convention contains an exhortation that the Parties shall seek toconclude bilateral and multilateral agreements to carry out or to enhance the effectiveness of extraditionand on transfer of sentenced persons. These paragraphs are very weak and it is doubtful in my mind
whether the mere fact of writing such language into a convention will contribute to the further drafting ofsuch agreements. They are however a recognition that the 1988 Convention is not a free standing
convention creating extradition obligations on its own. These articles are in principle retaken in thePalermo Convention.
As a general evaluation, thus, it may be said that international extradition law has not moved muchfurther in the past 12 - 15 years except in the areas of protection of the individual. That must however beseen to be an achievement. There remain still problems concerning double criminality, the politicaloffence exception and extradition of nationals. Moreover, it seems difficult to achieve something on theissue of speed - extradition proceedings are slow, unwieldy and do not meet the needs of a modern
criminal justice system, which has become more and more globalised and where crime is truly
international by nature and where criminals can easily travel and escape justice in any country.
B. At the Level of the European Union
It is no doubt to my mind that the issue of mutual recognition in criminal matters may have anenormous significance for the development of future policy-making of the EU in the field of criminal law
and it may well represent a real change in policies in criminal matters. As the EU has become a very
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important player internationally also in criminal matters, it is possible that these new instruments andevents may have side effects in other parts of the world.
The former United Kingdom Home Secretary and current Minister of Foreign Affairs, Mr. Jack Straw,
launched the idea of mutual recognition among his colleagues at a lunch during the UK Presidency of theEuropean Union in 1998. Many wondered really what the Minister was aiming at. Was it only a questionof ratification of the 1970 Convention of the Council of Europe or the 1991 Convention drafted within
European political cooperation or was it something else? The European Council13 later confirmed, when
they met at Cardiff in June 1998, that further work needed to be carried out on mutual recognition. It
further decided at its subsequent meeting in Tampere14 in 1999 that mutual recognition should become thecornerstone of future judicial cooperation in the European Union.
C. The Concept of Mutual Recognition
In order to understand what is happening in the European Union in the development of new means ofcooperation in criminal matters, it may be of some interest to examine what is meant by mutual
recognition.
In fact, the concept is not new in the Union. It has been in particular used in the context of setting up
the Single Market within the Union and also in the field of civil law. It is often referred to as analternative of harmonisation, but the matter is somewhat more complicated than that. Using the concept incriminal law is however in principle new.
It is true that until today, the concept of mutual recognition has not been well defined. Some consider
it a revolution whereas others consider that it is only another form of judicial cooperation, somethingsimilar to standard mutual legal assistance, perhaps a little bit more efficient. The question is who isright?
If one looks at the Revised Convention for the Navigation on the Rhine of 17 October 1868 one mayread 15:The decisions of the courts for navigation on the Rhine in each State on the board of the Rhine will
be enforced in all the other States by observing the forms provided for in the law of the executing State.
This text is applicable to financial penalties among the members of the Rhine Commission and was
drafted 135 years ago. It bears, however, a striking resemblance with Article 4 of a UK initiative on
mutual recognition as regards financial penalties which is currently being discussed in the Council. Did
we then not reach any further in 135 years?
It has been argued that the difference between classical cooperation and mutual recognition is thatin mutual recognition, State A takes the decision and this decision is recognised and enforced in State B.
Traditional judicial cooperation is about State A requesting assistance from State B and the decision is

13

This is the Heads of State and Government of the EU.

14

A town in Finland.

15

Quoted from : Council of Europe, Aspects de la valeur internationale des jugements repressifs, Strasbourg 1968.

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being taken in State B. Although clarifying from the point of view of bringing some order into thesystem, I do not consider, however, that the situation is as clearly cut as that. An arrest warrant in State A
for purposes of extradition is already under the 1957 Extradition Convention enforceable abroad and an
insertion, under Article 95 of the Schengen Convention, of information relating to an arrest warrant will
have immediate effects/consequences for any person found on the Schengen territory and will lead to his
immediate arrest. Moreover, Article 13 of the 1990 Council of Europe Money Laundering Convention 16,
in the same manner as the 1988 Drugs Convention, provides for a dual system of recognition: either
direct enforcement of the decision or a submission to competent authorities for them to take decisions.
It cannot be said to be only a question of terminology, although the chosen terminology is importantas it has both a psychological and a symbolic value. Terminology may also have an impact on practice as,
if one in building a system of mutual recognition is creating autonomous concepts 17, Member States will
have to examine whether these concepts fit in with their legal system or if they have to create new legal
concepts. But mutual recognition is not only about admitting that we will accept a foreign decision as if itwere our own, it is also about admitting that it might not fit in with our own legal system. This is also
what the European Court of Justice has noted in a landmark case Gozutok (case 187/01), where theprinciple was applied to a case of ne bis in idem.
In two proposals on freezing of assets and on financial penalties that the Council has been examining
during 2002 and 2003, this is shown by the use of the terms issuing State and executing State . I
believe that the use of those terms is important as they clearly demonstrate that we are no longer in ascheme of cooperation between States but in a system of mutual recognition.
In fact, the concepts are different: in traditional judicial cooperation it is State sovereignty that is the
key element. One sovereign Member State cooperates with another sovereign Member State, fully inrespect of its national law. In mutual recognition the starting point is completely different. It is first andforemost a question of accepting a foreign decision as if it were made by a national judicial authority. The
key issue is: do we have trust and confidence in that decision?
The difference between traditional cooperation and mutual recognition should also have legal
consequences. In principle it should no longer be possible to refuse a foreign enforcement order, it must
be executed. There are, in a full blown scheme of mutual recognition, no longer any rights of refusal, atthe very most rights of non-execution.
If one draws out the consequences of a genuine system of mutual recognition, it should not be
possible to refuse to enforce a decision even if statutory limitations under the national law could apply,
even if the highest penalty for an offence does not exist under the national law, etc. This raises very
delicate issues and it will have to be examined in the future whether one can accept all the consequencesof a pure mutual recognition system, not the least in the light of protection of fundamental rights.
Mutual recognition is not about turning a blind eye to a foreign judicial authority but it is aboutplacing full faith and trust in the foreign legal system and in their judges. Therefore, real mutual

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European Treaty Series No 141.

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It should be remembered that in the European Union, the Court of Justice might be called to pronounce itself on these concepts.

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recognition is only possible among States that are very close to each other and have similar legal systems
or have a high level of trust in each other.
One of the problems in exercising a control of the decision in a foreign State, including a control in
the light of the provisions of the European Convention on Human Rights, is that the foreign State is inalmost all cases never apprised of the entire procedure carried out in the issuing State. The case law of theEuropean Court of Human Rights is clear on this point; the Court examines the entire procedure and sees
whether it, taken as a whole, is considered to be fair. Of course serious mistakes may not be made by thejudge but the question is whether it is a judge in another country that should control that question or ajudge in the country where the main question is examined? For my part I believe that in principle there
should not be any possibility for the judge of another country to control such mistakes unless they areclearly brought to his attention and in such cases they will probably in any case be considered null andvoid under general rules, for instance of constitutional emergency, that could always be applied.
Therefore, in principle, full faith and trust needs to be placed in the foreign judicial authority of anotherMember State.
The question of harmonisation and mutual recognition has been debated intensively within theEuropean Union since the Tampere European Council. It seems clear from the debate that harmonisation
actually favours mutual recognition and that the two go hand in hand. Harmonisation is not an alternative
to mutual recognition and, in the same manner, mutual recognition is not an alternative to harmonisation.
However, the very concept of mutual recognition means also that there might be differences between
Member States legislation, but that should not in itself be an obstacle to mutual recognition.
In my opinion, double criminality is against the concept of mutual recognition - it should therefore notapply. This is also born out to a large extent by the Framework Decision on the European Arrest Warrant.
D. The European Arrest Warrant
The concept of a European Arrest Warrant (EAW) is a concept which, along the lines of mutual
recognition described above, will abolish extradition between the Member states of the European Unionand instead institute a system of surrender. The EAW must be recognised by the judicial authorities ofevery Member State of the EU. Intervention of the Ministries of Justice is abolished and the EAW iscirculated directly between judicial authorities, sometimes via a computerized system which has existed
inside the EU since 1990, the so called Schengen Information System. The EAW serves as a request for
location, arrest, detention and surrender of the fugitive.
Viewed from the perspective of cooperation in criminal justice matters there can be no doubt that the
Framework Decision on the European Arrest warrant does not amount to an automatic extradition or
surrender on demand. On the other hand the changes to which it gives effect are, in their nature andpotential effect, unprecedented for a multilateral instrument in this area of concern. It is, in fact, the first
instrument seeking to implement the principle of mutual recognition in international criminal law.
To many the European Arrest Warrant is closely associated with the formulation, by the Extraordinary
European Council of 21 September 2001, of an action plan to combat terrorism. While it is true that itconstitutes a key ingredient of that plan and that the terrorist attacks on the U.S. of 11 September
produced the necessary political momentum for its timely conclusion, it is necessary to recall that theorigins of the initiative predate those tragic events.
The perceived need to improve the efficiency and effectiveness of extradition among the Member
States of the EU dates back over twenty years and for prolonged periods it had a position of prominence
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on the agenda of the Judicial Cooperation Working Group operating in the framework of European
political cooperation. The concept of the creation of a European Judicial Area can even be traced backto the mid 1970 when, the then French President, Valerie Giscard d Estaing coined the expression.
Inter-governmental interest in extradition was, however, revitalised by the entry into force of theTreaty on the European Union on 1 November 1993. Indeed, at its first meeting later the same month, theCouncil of Interior and Justice Ministers stressed the importance of judicial cooperation and adopted astatement requesting that possible improvements in both extradition requirements and procedures be
examined. This set in train a process which was to result in, among other achievements, the conclusion of
the EU Extradition Conventions of March 1995 and September 1996. Both embodied significant
modernising features and thus constitute an appropriate point of reference in any assessment of thechanges brought about by the arrest warrant.
The 1995 Convention institutes a system of simplified extradition between the Member States of the
EU. The consent of the person and the surrendering State is needed and the conditions for obtaining suchconsent are specified in the Convention. So far, thirteen of the fifteen Member States have ratified thisConvention.
The 1996 Convention on extradition between the Member States of the EU seeks to deal with some ofthe problematic issues in international extradition law. It lowers the threshold for extradition to six
months in the requested member State, it attacks the problems of double criminality in relation toconspiracy and association to commit offences, it abolishes the political offences exception between theMember States (however with some exceptions), it deals with fiscal offences and with extradition ofnationals, without however reaching radical solutions and it contains provisions with respect to lapse oftime and amnesty.
It is however true to note that these two Conventions are classical intergovernmental instruments
which do not correspond to the level of ambition which started to take shape within governments of theEuropean Union and which has led to the creation of the concepts of an Area of Freedom, Security andJustice in the Amsterdam Treaty and abolishing the internal borders of the Union. This was one of themain reasons why the concept of an EAW was created.
While there has thus been a long established recognition of the need for the modernisation of the law
and practice of extradition within the EU, the nature and focus of that debate was to be transformed in aradical fashion by the Tampere European Council of October 1999. When the Council reaffirmed theimportance of developing the Union as an area of freedom, security and justice it sought at the same timeto ensure that the subject remained at the very top of the political agenda and to provide policy
orientations and priorities to guide subsequent developments.
Of these the most innovative and demanding, from a criminal justice perspective, relates to mutual
recognition of judicial decisions. In the words of the conclusions (the so-called Tampere Milestones):
33.Enhanced mutual recognition of judicial decisions and judgements and the necessary
approximation of legislation would facilitate cooperation between authorities and the
judicial protection of individual rights. The European Council therefore endorses theprinciple of mutual recognition which, in its view, should become the cornerstone of judicial
cooperation in both civil and criminal matters within the Union. The principle should apply
both to judgements and to other decisions of judicial authorities.

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The Tampere conclusions also called for specific action to be taken in the sphere of extradition:
35.With respect to criminal matters, the European Council urges Member States to speedily
ratify the 1995 and 1996 EU Conventions on extradition. It considers that the formal
extradition procedure should be abolished among the Member States as far as persons areconcerned who are fleeing from justice after having been finally sentenced, and replaced by asimple transfer of such persons, in compliance with Article 6 TEU. Consideration should also
be given to fast track extradition procedures, without prejudice to the principle of fair trial.
The European Council invites the Commission to make proposals on this matter in the light of
the Schengen Implementing Agreement.
Finally the Council called for a Programme of measures to be adopted by the end of 2000 to
implement the principle of mutual recognition. This has since been accomplished. Two initiatives relate to
the extradition sphere (measures 8 and 15); as with Tampere they distinguish between pre and postconviction cases. In the final event, however, the European Arrest Warrant, like classical extradition law,
was formulated so as to embrace both elements.
Interestingly in the original Programme of measures neither was afforded the highest priority (2 and 3
respectively). In another programme of the Union, the so-called Millenium Strategy against organizedcrime, the creation of a system of surrender was considered to be a long term objective (to be realised
within ten years). That the European Arrest Warrant was to become the first mutual recognition measure
upon which provisional agreement was to be reached was the result of the change of emphasis andperception brought about by the events of 11 September.
As has been pointed out in the above mentioned Programme of measures 2000:
Implementation of the principle of mutual recognition of decisions in criminal matterspresupposes that Member States have trust in each others criminal justice systems. That
trust is grounded, in particular, on their shared commitment to the principles of freedom,democracy and respect for Human Rights, Fundamental Freedoms and the Rule of Law .
The recitals to the Framework Decision on the EAW explicitly re-affirm that high level of confidence.
From that base it goes on to articulate a scheme designed to remove the complexity and potential fordelay inherent in the present procedures of extradition . That classical system of inter-state cooperation isabolished: replaced by a system of surrender between judicial authorities .
Indeed, it is the decision to remove the executive from its previously central role in the process of
surrender which constitutes perhaps the most innovative feature of the new regime. As the UK Home
Office has noted:
The warrant can only be executed by a judicial authority in the executing state, and there isvirtually no involvement for the executive in the decision-making process. The Central
Authority ... may have a small role to play in transmitting documents, requests for additional
information and facilitating translations and may be involved in some limited elements of thedecision making process.
The judicialisation of the process of surrender is to be warmly welcomed. Over the years - andparticularly in high profile cases - the propensity for politicians to intervene to prevent extradition, where
it was otherwise legally possible, has often been a source of friction and concern.
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While the new process is to be overwhelmingly judicial in character it is not to be automatic. It may
be based on the notion of mutual trust but it also acknowledges that there remain limits to theconsequences which flow from such trust. Consequently the Framework Decision contains bothmandatory and discretionary grounds for non-execution (see especially Articles 3-5) as well as a range ofother limits and guarantees as regards the nature and scope of the process.
That said there is no doubt that impressive strides have been taken towards the removal of some of the
traditional barriers to cooperation, traditionally found in extradition instruments. By way of illustration let
us take what were perhaps the three most controversial and difficult issues in the lengthy EU engagementwith extradition, namely:
1) non-extradition of nationals;
2) the political offence exception ; and3) the requirement of double criminality.
1. Non-Extradition of Nationals
As has been noted above, many States, particularly those from the civil law tradition, have been
precluded by constitutional or statutory provisions from extraditing their own nationals. For this reason it
has become commonplace for extradition arrangements to include nationality as an optional ground forrefusal. This is, for instance, the stance taken in Article 6 of the 1957 European Convention, drafted under
the auspices of the Council of Europe, though it is associated with a requirement to submit the case fordomestic prosecution when this ground is invoked (As many practitioners know, this possibility is often
hardly worth the paper on which it is written.).
As noted above, the 1996 EU Convention recorded only modest movement in this area. Article 7
established the basic principle that extradition must not be refused on this basis (a principle subsequently
acted upon by Germany that made a change to its Constitution and allowed extradition of nationals with
the EU). However, the same article contained an opt-out or derogation provision which, in effect, permits
Member States to maintain this barrier on an indefinite basis.
By way of contrast the Framework Decision on the European Arrest Warrant does not include
nationality (in its pure form) as either a mandatory or discretionary ground for non-execution (save inrespect of Austria where a special, though limited, transitional provision applies until 31 December 2008
- Art. 26). That said, the EAW stops short of negating nationality as a relevant factor. This is wellillustrated by the inclusion, in Article 5(3), of the option of making execution conditional on a guarantee
that, upon conviction, the individual is returned to his or her state of nationality to serve the sentence
there (This is commonly called the Dutch solution as it has been advocated by the Netherlands ininternational fora for a number of years since the Netherlands found this solution in extradition cases with
the USA where the death penalty could ensue.). This approach is complemented by an option, in respectof convicted persons, to execute the sentence in the state of nationality rather than return the offender tothe state of conviction (Art. 4(6)). A similar philosophy is also evident in the treatment of the transit ofnationals (Art. 20(1)).
From this it may be fairly concluded that the Framework Decision has made significant strides ineliminating a major barrier to extradition while remaining sensitive to some of the underlying issues ofprinciple.

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2. The Political Offence Exception
The EAW performs even more radical surgery on the so-called political offence exception to
extradition. Over many years the Member States of the Council of Europe have played a key role inpromoting the incremental abolition of this controversial barrier to extradition: a process commenced in
the 1957 Convention, and carried forward by Protocol I in 1975 (Crimes against Humanity and War
Crimes), and, more significantly, by the 1977 European Convention on the Suppression of Terrorism. In
so doing the Council of Europe has also pioneered a substitute form of protection for the individuals
concerned; namely, the so-called fair trial or asylum clause (1977: Art. 5). The major defect in thisapproach was the continued ability and willingness of countries (including the Member States of the EU)
to undermine the effectiveness of these developments by having (frequent and extensive) recourse tolimiting reservations and declarations.
The 1996 EU Convention recorded some progress in this sphere by establishing both a new generalprinciple or goal and a new minimum standard. Article 5(1) set as the general principle that no offence
may be regarded as political inter-se. Departures from this may, however, be effected by State declaration.
However, Article 5 also sets a limit to this process in the form of a common minimum standard; that no
EU Member can regard the offences covered by the European Convention on the Suppression ofTerrorism as political. By way of compensation the fair trial or asylum provision would, however,continue to apply.
The EAW has taken this process an important stage further: namely, the abolition of the politicaloffence exception as such. This major achievement is not, however, specifically proclaimed in the text.
Rather it flows from the fact that political offences are not enumerated as mandatory or optional grounds
for non-execution. The sole remaining element of the treatment of this subject is confined to the recitals
and takes the form of a modernised version of the fair trial or asylum provision.
In this sphere also it may properly be concluded that the EAW will give effect to substantial change at least (given the limited number of cases) symbolically.
3. Double Criminality
The feature of the EAW scheme which has attracted perhaps the greatest public attention to date is the
exceptions which it creates to the traditional requirement of double criminality; i.e., the rule which, inessence, provides that there shall be no surrender for acts which are not categorised as criminal by the lawof the State of refuge. As previously noted, this traditional barrier to extradition, it should be noted, wasleft largely intact by the 1996 EU Convention (though relaxed by Article 3 for conspiracy and association
to commit terrorist, organised crime and drugs trafficking offences).
These limited exceptions to the double criminality rule are significantly widened by Article 2(2) of
the framework decision. In respect of a very broad list of thirty two generic types of offences, it abolishes
the possibility of examination of double criminality. If a foreign judge certifies that he is investigating aparticular offence which is punishable by imprisonment in his country of at least three years and if that
offence is on the list of thirty two offences, the judge in the executing state shall not examine the facts ofthe case and control double criminality. It is very important to note that for the purposes of the EAW it is
the act as defined by the law of the issuing State which governs the matter. Therefore, in principle, an
executing judge is not allowed, under the Framework Decision, to examine whether double criminality
exists. If the foreign judge has certified in the EAW that the offences which he is investigating are on thelist, the case is closed.

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Moreover, the list of offences contained in Article 2(2) is not restricted to terrorist offences. Indeed its
very broad coverage has been heavily influenced by the Europol Convention Annex. Crimes such as
racketeering, money laundering, computer-related crime, fraud and swindling are on the list, so there is
ample room for manoeuvre for the judges who want to use the EAW. The list can be added to by theCouncil, acting unanimously, following consultation with the European Parliament. For crimes which are
not on the list or which have a penalty level of less than three years in the issuing State, double
criminality will continue to apply.
While this approach constitutes a radical departure from pre-existing European and international
precedents it is of importance to stress that the requirement of double criminality has not been abolishedcompletely, although it may be assumed that most cases of what was previous extradition among theMember States will now be covered by the list.
Also relevant in this context is the fact that the Framework Decision leaves intact the traditional ruleof extradition law in relation to extraterritorial offences; namely that there is no obligation to surrenderwhen the arrest warrant envisages offences which have been committed outside the territory of theissuing Member State and the law of the executing Member State does not allow prosecution for the sameoffences when committed outside the territory of the executing Member State (Art. 4(7)). As aconsequence the difficulties encountered by Spain on this basis in the Pinochet affair could arise again in
the future. Importantly this permissive restriction applies to all offences including those listed in Article2(2).
Whilst there has again clearly been significant progress in reducing the impact of a traditional
obstacle to extradition, the treatment of double criminality and related matters also serves to underlinethat the system provided for in the Framework Decision falls some way short of extradition on demand.
In my opinion, the Council has reached a fair balance between efficiency and protection of individual
rights.
Among the other notable features contained in the Framework Decision and designed to modernise
and expedite the process of surrender one might mention the following:(i) A significant relaxation of the requirement of speciality - albeit along the lines trailed in the
1995 and 1996 EU Conventions.
(ii) It makes provision for Eurojust to play a limited though constructive role by:- the provisionof advice (upon request) in cases of multiple requests for surrender (Art. 16(2));- requiring
states to inform Eurojust of the reasons for failure to observe the stringent time limits for
surrender (Art. 17(7)).
(iii) In principle the system should consign the frequent and lengthy delays (often counted inyears) associated with extradition to the dustbin of history. Under the Arrest Warrant theprocess should take place very rapidly: in principle not more than 60 days which however in
exceptional cases may be extended to 90 days (Art. 17). Where surrender is made uponconsent, the process will take 10 days.
The EAW is, without doubt, the most important development to emerge from a quarter of a century of
EU engagement with the issue of enhanced cooperation between Member States in the administration of
criminal justice. If one thinks of the law and practice of extradition as involving or reflecting some sort ofbalance between its cooperative and protective purposes there has, through this measure, been a decisive
shift towards cooperation and even towards recognition of each others systems.

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This is not to say, however, that protections for the individual have no role to play in this new system;
far from it. By way of illustration, the provisions on such matters as double jeopardy, right to a lawyer,amnesty, and in absentia convictions all have a protective purpose.
At the root of some concern over the EAW expressed by human rights organisations is the view thatthe mere fact of participation by all Member States in the ECHR, with the associated right of individual
petition, is not a sufficient guarantee for the appropriate treatment of the individual whose surrender has
been sought. Furthermore, it is argued that the relatively few ECHR inspired references in the text of theframework decision do not adequately address this issue. In my opinion, such concerns are not founded.
There is one substantive provision in the operative part of the text which makes a reference to theprotection of human rights - namely Article 1(3). This provision states that the decision shall not have theeffect of amending the obligation to respect fundamental rights and fundamental legal principles as
enshrined in Article 6 TEU (which refers to the ECHR and the constitutional traditions of the Member
States). The question here is whether there was a need to state the obvious - of course the Member Statesof the EU are bound by the European Convention of Human Rights and their constitutions.
The Preamble also contains three further relevant recitals; namely:(i) Paragraph 10 - On suspension of the arrest warrant in the case of a severe breach of theprinciples set out in Article 6(1) TEU (which includes Human Rights and Fundamental
Freedoms);(ii) Paragraph 12 - Which, inter alia, embodies the fair trial or asylum provision to compensate in effect - for the abolition of the political offence exceptions; and(iii) Paragraph 12a. Due process, freedom of the press, etc.
It is argued by some that this is insufficient; that the text must be supplemented by the inclusion ofsubstantive grounds for refusal where the individual faces a violation of Article 6 or Article 5 rights upon
return.
The Home Secretary in the UK has noted:
It is conceivable that there may be a wholly exceptional case in which the UK courts may
judge that there is a risk of treatment, on return ... that is incompatible with the ECHR.
Under those circumstances, the District Judge could refuse to execute a request for aEuropean Arrest Warrant.
The basis for this view is clearly Article 1(3). It should, however, be noted that the Strasbourg caselaw indicates that the circumstances triggering such protection are set at a relatively high level (See, e.g.
Soering Case).
It would, as the work of the International Law Association has demonstrated, have been possible toformulate an explicit general human rights clause to reflect this restricted reality (though with a highthreshold; e.g. a real risk of a serious violation ). However this is seemingly implicit in Article 1(3) that this could actually happen in the context of the development of the EU today is however rather
improbable, to say the least. Those seeking broader protections than this might be best thought of as
looking for measures to compensate for the removal of those principles of extradition which were of
direct benefit to the individual. This says something fairly fundamental about the reality of the existinglevels of mutual trust on which mutual recognition is based.
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E. Mutual Legal Assistance
1. At the Level of the United Nations
Mutual legal assistance has, in the same manner as extradition, for decades been characterized byconcepts of sovereignty and protection of the essential interests and the ordre public of the requested
State. It has in fact become a tool for diplomats and not for law enforcement, scarcely meeting the needsof a modern society which is open to attack from terrorists and organized criminals engaged in trafficking
in all sorts of goods or of human beings.
However, the trend was broken to some extent when the 1988 Convention for the first time in a world
wide instrument incorporated provisions on international cooperation, taking into account in particularexperiences of a number of countries belonging to the common law tradition, in the conclusion ofbilateral treaties on the subject.
In Europe, the mutual legal assistance until 1990 was founded on the 1959 Council of Europe
Convention on mutual legal assistance in criminal matters and, for some countries, on the 1962 Benelux
Convention. Within the Nordic countries, a regional cooperation had been developed which was largely
based on uniform laws and on trust (and common language) between those countries.
But at the worldwide level, it was clear that the ever increasing drugs trafficking phenomenon had tobe met - the drafting of the 1988 Convention provided a golden opportunity. Moreover, the Convention
allowed for provisions on transfer of criminal proceedings, transfer of enforcement of sentences, transfer
of sentenced persons and the transfer of the enforcement of confiscation orders, to be incorporated.
However, in relation to such latter cooperation, the drafters deliberately refrained from elaborating
detailed provisions as it was considered that such cooperation for the time being would be more
appropriate for regional or bilateral conventions.
It would not be possible to examine in detail all the provisions of the 1988 Convention and thesignificant progress that was made at the time. Such an examination would make this paper too long andunwieldy. I will therefore concentrate the following analysis on some of the more significant
improvements between the 1988 Convention and the Palermo Convention.
Before doing so, it should however be noted that the two Conventions (in Article 7(1)-(6) for the 1988
Convention and in Article 18(1)-(6) for the Palermo Convention) are freestanding and not only contingent
upon the existence of a Treaty between the Parties. They therefore give a solid legal basis to afford thewidest measure of mutual legal assistance in investigations, prosecutions and judicial proceedings relating
to offences covered by the Conventions (the 1988 Convention only covers the core offences). In thefollowing paragraphs (8-19 for the 1988 Convention and 9-29 for the Palermo Convention), the two
Conventions are not freestanding but apply to requests if the Parties are not bound by a Treaty or, if they
are bound by a Treaty, that Treaty will apply unless the Parties agree to apply the UN Conventions. The
Palermo Convention however strongly encourages its own application if it facilitates cooperation.
Only from the number of paragraphs in the articles, it may be concluded that the provisions of thePalermo Convention represent significant progress and a higher level of precision than the 1988
Convention. Among the new (or more specified) measures mentioned as examples of mutual legal
assistance under the Palermo Convention are freezing, providing information, evidentiary items andexpert evaluations, as well as the provision of government records. The facilitation of the voluntary
appearance of persons in the requested State has also been added specifically, although Article 7(4) of the1988 Convention contains some weak treaty language that also would cover this situation.
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Provisions of so-called spontaneous information have also been added in the Palermo Convention,
probably on the basis of experiences gained in the context of Article 10 of the Council of Europe
Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, which, to myknowledge, was the first multilateral instrument on cooperation in criminal matters that contained such aprovision. Paragraph (18(4)) of the Palermo Convention is however considerably weakened as it is madecontingent upon not being without prejudice to domestic law, something that may mean that in practice
the paragraph may not be so efficient. It is also interesting to note that the Palermo Convention in thefollowing paragraph to a great degree of detail specifies the conditions under which the spontaneoustransmission will take place and in particular contains language as regards information that is exculpatory
to an accused person. This again illustrates how the modern multilateral treaties have become more
protective of individual rights of persons than the previous generation.
Interestingly, the Palermo Convention goes into some detail, in its paragraph 13, also on the crucialrole of the Central Authorities to ensure that requests are speedy and properly executed or transmitted toan executing authority responsible for the execution of the request (which in such a case is encouraged
to execute speedily - an obvious reference to the independence of the judicial authorities). The Palermo
Convention also contains, in paragraph 24, a specific obligation for the States to execute the request formutual legal assistance as soon as possible and that it shall take as full account as possible of any
deadlines suggested by the requesting State for which reasons are given. The information requirements
have also been specified to a high level of detail in that paragraph. These provisions are probably inspiredby similar provisions in the previously mentioned Joint Action of 1998 of the Council of the EU on bestpractices in MLA and of corresponding provisions in the EU 2000 Convention on mutual legal assistance.
The Convention also deals with the difficult problem of federal States which may have several central
authorities. It also considerably alleviates the formalism concerning written requests transmitted via
diplomatic channels and allows for any means capable of producing a written record under conditions
allowing the establishment of authenticity. This may mean that at least faxes may be used or, with agenerous interpretation, even E-mails. It will also allow a development in the future that would betechnology neutral. No doubt, this could allow States to expedite the execution in particular of freezingorders where often speed is of crucial importance.
The Palermo Convention reflects also technological progress in that it allows ( wherever possible andconsistent with fundamental principles of domestic law ) for the hearing of witnesses by videoconference(see paragraph 18). This possibility was first included in the Convention of 29 May 2000 of the European
Union on mutual legal assistance between the Member States and has in that convention been
considerably regulated in detail. The Palermo Convention has not gone into detail but provides merely forthe legal framework for the decision to be made. It may be assumed that this paragraph may need somefurther specific agreements between the Parties, as in practice several problems have not been addressed,
such as the responsibility for perjury and other delicate questions.
2. At the Level of the European Union
In a paper which I submitted to the Group training course for senior officials at UNAFEI in February
2000, I described in detail the work of the European Union as regards mutual legal assistance. It istherefore not necessary that I again go into detail on that work. It is sufficient here to note that theConvention, which I described in that paper, has now been adopted on 29 May 2000 and is so far ratified
by three Member States.

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In addition, an innovative Protocol to the Convention was adopted in 2001. This Protocol sets up asystem whereby the Member States would be able to provide mutual legal assistance in the search forbank accounts of suspects and, when found, to block money on such accounts. This Protocol represents agreat step in the fight against organised crime and constitutes a breakthrough in enhancing efficient law
enforcement.
As previously mentioned, the Council, in implementing its programme concerning mutual
recognition, has begun to draft a number of instruments embodying this principle. Many of these
instruments have been recently adopted or are in the final stages of negotiation and will be adopted
shortly.
Among these measures are Framework Decisions on:
Freezing of assets. This Framework Decision18 will enable assets to be frozen within 24 hours in the entire
Union.
Financial penalties. This Framework decision will enable financial penalties to be executed in the entire
EU on the basis of a very simplified system with few grounds for non-execution.
Confiscation. This Framework Decision will enable confiscation orders to be executed within the Union
on the basis of a very simplified system. It is still under discussion but can be expected to be adopted
within six to ten months.
In addition, the Council is expecting a new proposal from the European Commission to set up asystem of mutual recognition for obtaining evidence abroad.

V. SOME NOTES ON MONEY LAUNDERING AND FINANCING OF TERRORISM
The offence of money laundering was first, in an international context, mentioned in an old Council ofEurope Recommendation from 1980, but the Council of Europe was ahead of its time. When then theissue was brought up in the context of the negotiations on the 1988 Convention, things had moved ahead
and the international community was prepared to deal with the issue - there was a generally shared feelingamong legislators and policy makers that there was a need to hit criminals where it hurt most - in thewallet .
The definition of money laundering was taken up not only in the 1988 Convention but also in the 40
Recommendations of the FATF and in the 1990 Convention. This contributed to a general consensus thatsomething had to be done, although there was (and still is) doubt in some countries about making money
laundering a criminal offence across the line, and not only for proceeds from drugs trafficking.
The activities of the FATF, MONEYVAL or other international groupings have however had a great
impact and there is a growing international consensus on the topic.

18

OJ L 196/45, 2.8.2003.

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In the European Union, a number of initiatives have been taken in the form of binding legislation.
Among these the following can be mentioned:- The Council Directive of 10 June 1991 on prevention of the use of the financial system for the purposeof money laundering19. This Directive obliges the Member States to prohibit money laundering and lays
down detailed rules on serious transaction reports and on know your customer requirements. This
Directive was supplemented in 200120 when the obligations of the Directive were extended to certain nonfinancial activities and professions, including lawyers and accountants. It also broadened the prohibitionof the predicate offences.
- The Joint Action on money laundering, the identification, tracing, freezing, seizing and confiscation of
instrumentalities and the proceeds from crime21. This Joint Action deals with a number of issues such as
reservations to the previously mentioned Council of Europe Convention, training and other issues.
- A Framework Decision on the same topic22 which approximates criminal law and addresses the issue ofpredicate offences and sanctions (at least four years imprisonment). Value confiscation is introduced
throughout the EU.
- A Decision on cooperation between Financial Intelligence Units23. The FIUs shall cooperate toassemble, analyse and investigate relevant information within the EU. It lays down rules on
exchange of information and on analysis thereof.
The special European Council, held in Tampere on 15 and 16 of October 1999, was devoted to themaintenance and the development of an area of freedom, security and justice in the European Union.
Among the conclusions of the Tampere European Council was a call for improved cooperation againstcross border crime through the use of joint investigation teams to combat, inter alia, terrorism and forspecial action against money laundering.As regards financing of terrorism, the following may be noted.
In the wake of the terrorist attacks in the USA on 11 September 2001, the Justice and Home Affairs
Council met on 20 September and adopted a series of measures to combat terrorism, including in theareas of judicial and police cooperation and the financing of terrorism.
At the extraordinary European Council on 21 September 2001 it was decided that the fight against
terrorism would be a priority objective of the European Union. The Council approved a plan of action
dealing with enhanced police and judicial cooperation, developing international legal instruments against
terrorism, preventing terrorist funding, strengthening air security and greater consistency between all theUnion s policies. An informal meeting of the ECOFIN Council took place on 21 September 2001. It
issued a statement on actions to combat the financing of terrorism.
The statement outlined a number of initiatives in this regard. These were:- Rapid adoption of the second money laundering Directive (see above) and a Framework Decisionon the execution in the EU of orders freezing assets or evidence.24- Paying particular attention to activities linked to terrorism in the draft Directive on insider trading.
- Reinforcing exchange of information between Financial Intelligence Units (FIUs). See above.
- Ensuring extension of the Financial Action Task Force (FATF) mandate to include terrorist
financing and supporting the FATF s Non-Cooperative Countries and Territories (NCCT) exercise
and review of its 40 Recommendations.
- Adopting a proactive and coordinated approach to such matters in international fora.
- Asking EU future members to be in line with EU standards.
- Ratification and implementation of relevant UN Resolutions and Conventions.

19

OJ L 166/77, 28.6.91.

22

OJ L 182/1, 5.7.01.

20

L 344/76, 28.12.01.

23

OJ L 271/4, 24.10.00.

21

OJ L 333/1, 9.12.98.

24

OJ L 196/45, 2.8.2003.

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On 19 October 2001 the European Council declared that it is determined to combat terrorism in every
form throughout the world. It also indicated that it would continue its efforts to strengthen the coalition of
the international community to combat terrorism in every shape and form. It called for particular attention
to be given to approval of the European arrest warrant, the common definition of terrorist offences andthe freezing of assets, increased cooperation between the operational services responsible for combating
terrorism (Europol, Eurojust, the intelligence services, police forces and judicial authorities) and effective
measures to combat the funding of terrorism by formal adoption of the second Money Laundering
Directive and speedy ratification of the UN Convention for the Suppression of Terrorist Financing.
Therefore, since October 2001 a number of actions have been taken by the EU aimed at countering
terrorism as well as preventing the acquisition, retention and use of funds or assets by such organisations.
Taken together with the earlier actions these constitute powerful measures in the Union s arsenal to fightterrorism. Outside of what has already been mentioned above, some of the further legislative actions will
be mentioned here.
- Council Decision of 6 December 2001 extending Europol s mandate to deal with serious forms ofinternational crime listed in the Annex to the Europol Convention25 The effect of this Council Decision
was to enable Europol to deal with the serious forms of international crime listed in the Annex to theEuropol Convention, such as murder, grievous bodily injury, kidnapping, hostage-taking, organisedrobbery and illicit arms trafficking. Europol s mandate now includes support for law enforcement against
serious international organised crime, including terrorism.
- Council Common Position26 of 27 December 2001 on combating terrorism27. The Common Position setsout a number of actions to be taken to combat terrorism. The principal measures contained in the
Common Position are: criminalising the financing of terrorism within the EU, freezing of financial assets
or economic resources of persons or entities involved in terrorism, prohibiting the giving of financial orother assistance to such persons or entities, requiring measures to be taken to suppress any form of
support for those involved in terrorist acts, taking steps to prevent terrorist acts and denying safe haven to
those involved in such acts. It also calls for Member States to afford one another (and third countries)
assistance in connection with criminal investigations or criminal proceedings relating to the financing or
support of terrorist acts, better border controls to prevent the movement of terrorists, informationexchange and cooperation to prevent and suppress terrorist acts. Furthermore the Common Position
contains a list of international conventions and protocols against terrorism to which member states should
become parties.
- Council Common Position of 27 December 2001 on the application of specific measures to combat
terrorism28. The Common Position establishes the primary list of persons, groups and entities involved in
terrorist acts. It sets out the criteria to be used to decide who should be considered as terrorists forinclusion on the list and the actions which constitute terrorist acts. The names on the list are to bereviewed at least once every six months. Under the Common Position the European Community is

25

OJ C 362/01, 18.12.01.

26This is a binding instrument under the Common Foreign and Security Policy.

27

OJ L 344/90 of 28 December 2001.

28

OJ L 344/93 of 28.12.0.1.

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125TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS PAPERS

empowered to order the freezing of the funds and other financial assets or economic resources of, and theprohibition on the provision of financial services to, the listed persons, groups and entities. Member
States are required to afford each other assistance in preventing and combating terrorist acts. In
accordance with Article 6, the Common Position is to be kept under constant review. The annex to the
Common Position has been up-dated several times.
- Council Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directedagainst certain persons and entities with a view to combating terrorism29. The Regulation provides for thefreezing of the funds, financial assets and economic resources of certain persons, groups and entities
involved in terrorism, for a prohibition on the making available of funds, financial and economic
resources to such persons, groups and entities and a prohibition on the provision of financial services tothem. It authorises the Council to establish and maintain a list of persons, groups and entities involved in
terrorism. Provision is also made for the granting of authority for the use of funds frozen in accordancewith the Regulation to meet essential human needs and for certain other payments (e.g. taxes, utility billsetc.).
- Council Decision of 27 December 2001 establishing the list provided for in Article 2(3) of Council
Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons andentities with a view to combating terrorism30. This decision contains a list or persons, groups and entities
against whom specific restrictive measures are to be applied in accordance with Council Regulation No
2580/2001. An updated list of persons, groups and entities to which the measures in the Regulation apply
has been published several times.
- Council Decision of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against
serious crime31. This Decision establishes Eurojust, to be composed of seconded prosecutors, judges orpolice officers from each Member State. The objectives of Eurojust are to stimulate and improve thecoordination, between the competent authorities of the Member States, of investigations and prosecutions,to improve cooperation between the competent authorities of the Member States and to support thecompetent authorities of the Member States in order to render their investigations and prosecutions more
effective. The Decision also provides that Eurojust shall establish and maintain close cooperation with
Europol and OLAF (an EU body protecting the financial interests of the Community). It also permits
Eurojust to conclude cooperation agreements with third States and international organisations and bodies.
It may also establish contacts and exchange experiences of a non-operational nature with other bodies, inparticular international organisations and conclude cooperation agreements with third States. Eurojust has
its seat in The Hague and has already dealt with more than 500 cases of serious international crime.
- Council Framework Decision of 13 June 2002 on joint investigation teams32. The Framework Decision
is intended to make the combating of international crime as effective as possible. It considered it
appropriate that a specific legally binding instrument on joint investigation teams should be adopted toapply to joint investigations into drugs/human trafficking and terrorism and that they should be set up, asa matter of priority, to combat offences committed by terrorists. The Framework Decision provides thattwo or more Member States may establish joint investigation teams for a specific purpose and for alimited period to carry out criminal investigations in one or more of the States establishing the team.

29

OJ L 344/70 of 28.12.01.

31

OJ L 063/1 of 6.3.2002.

30

OJ L 344/1 of 28.12.01.

32

OJ L 162/1 of 20.6.02.

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RESOURCE MATERIAL SERIES No. 65- Council Framework Decision of 13 June 2002 on combating terrorism33. The Framework Decision
requires Member States to adopt a common definition of terrorist offence as set out in Article 1. It also
obliges Member States to criminalise certain actions related to terrorist groups or terrorism, such as
directing or participating in the activities of a terrorist group as well as inciting, aiding or abetting andattempting to commit a terrorist offence.

VI. CONCLUSION
As may be seen, the legislative activity of the Council of the EU is impressive. A number oflegislative proposals are under way and many acts have been adopted. The political objective of creating
an Area of Freedom, Security and Justice should be realised gradually. At the same time, the Union needs
to dialogue with its partners because crime does not stop at its frontiers. One interesting example of this
dialogue is the recently signed Treaties on extradition and on mutual legal assistance between the EU andthe United States of America, where the EU for the first time in this context acts as an entity with a legal
personality.34 The Union is also currently negotiating treaties in this area with Norway and Iceland andwill, no doubt, in the future negotiate treaties with its partners.

33

OJ L 164/3 of 22 June 2002.

34

OJ L 181/27, 19.7.2003.

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