Proposal for a COUNCIL DECISION on the exchange of information and cooperation concerning terrorist offences

(presented by the Commission)

EXPLANATORY MEMORANDUM

INTRODUCTION

The purpose of this Decision is to improve the effectiveness of activities to prevent and combat terrorism and to boost cooperation between the Member States' authorities responsible for combating terrorism, Europol and Eurojust.

In particular the point is to broaden the exchanges of information on convictions for terrorist offences.

A European Register of convictions and disqualifications was envisaged in the programme of measures to implement the principle of mutual recognition of criminal judgments.

The idea was also developed in the Commission Communication on measures to be taken to combat terrorism and other forms of serious crime, in particular to improve exchanges of information.

However, without awaiting the establishment of the Register, which needs thorough analysis and will take time, rapid progress must be made towards improving the exchange of information between the Member States and the European Union bodies responsible for combating terrorism.

It is essential in combating terrorism for the Member States to routinely transmit to the relevant European Union bodies information on all persons investigated, prosecuted or convicted for acts of terrorism and to exchange information in this respect.

Council Decision 2003/48/JHA of 19 December 2002 on the implementation of specific measures for police and judicial cooperation to combat terrorism is a major step forward for the exchange of information at the time of ongoing criminal proceedings, particularly at the investigation stage.

The Decision, adopted on the basis of an initiative by the Kingdom of Spain, helps to improve exchanges of information on criminal investigations and proceedings concerning the "persons, groups or entities" listed in the Annex to Council Common Position 2001/931/CFSP of 27 December 2001.

The persistence of the terrorist threat and the complexity of the phenomenon raise a need for greater effectiveness. More must be done to extend the scope of these information exchanges to all terrorist offences within the meaning of Framework Decision 2002/475/JHA, without them being confined to those listed in the Annex to Common Position 2001/931/CFSP.

These exchanges of information should concern all the stages of the procedure, including criminal convictions;

The information - concerning investigations, prosecutions and convictions for terrorist offences - should be sent to Europol and Eurojust.

Under Article 8 of the Convention on the establishment of a European Police Office, Europol can enter data relating to convictions in its information system.

Article 8(1)(1) of the Europol Convention allows data on persons convicted of an offence within Europol's jurisdiction to be entered in the Europol Information System.

Article 8(3)(5) allows information on the conviction of such persons for offences within Europol's jurisdiction to be stored in the Europol Information System.

Such information can also be processed in working files held by Europol for analysis purposes in the performance of its tasks. And Europol can supply information on convictions to the Member States.

This information is optional, and in practice Europol receives very little information on convictions.

It is therefore important for the Member States to take the necessary measures to ensure that the appropriate authorities routinely supply Europol with at least the basic information it needs on convictions for terrorist offences within the meaning of the Framework Decision of 13 June 2002 on combating terrorism.

As regards Eurojust, Article 9(4) of the Council Decision of 28 February 2002 establishing it provides: "In order to meet Eurojust's objectives, the national member shall have access to the information contained in the national criminal records or in any other register of his Member State in the same way as stipulated by his national law in the case of a prosecutor, judge or police officer of equivalent competence."

It is also important here for the Member States to take the necessary measures to ensure that the relevant authorities actually and automatically send Eurojust information on terrorist offences, including convictions and the offenders' criminal records.

Council Decision 2003/48/JHA of 19 December 2002 on the implementation of specific measures for police and judicial cooperation to combat terrorism in accordance with Article 4 of Common Position 2001/931/CFSP will be repealed and replaced by this Decision.

Article-by-article commentary

Preamble

Recitals 1 and 2 restate the Council's determination to combat terrorism. They take over recitals 1 and 4 of Council Decision 2003/48/JHA of 19 December 2002 on the implementation of specific measures for police and judicial cooperation to combat terrorism.

Recital 3 states that it is essential in the fight against terrorism for the relevant services to have the fullest and most up-to-date information possible in their respective fields, including information on convictions. The Member States' specialised national services, the judicial authorities and relevant European Union bodies such as Europol and Eurojust have a vital need for information if they are to perform their tasks.

Recital 4 defines the objective of the Decision, with an express reference to Decision 2003/48/JHA of 19 December 2002, adopted on the basis of an initiative of the Kingdom of Spain, the scope of which must be extended to all stages of criminal proceedings, including convictions, and to all individuals and bodies corporate, groups or entities investigated, prosecuted or convicted for terrorist offences.

Recital 5 states that the Decision is in conformity with the rules on subsidiarity and proportionality.

The final recital states that the Decision respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union.

Article 1

Article 1 is devoted to definitions of the main concepts used in the Decision: most of them refer to other European Union instruments.

"Terrorist offences", for instance, are the offences specified in Articles 1 to 3 of Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism, the "Europol convention" is the Convention of 26 July 1995 on the establishment of a European Police Office and the "Eurojust Decision" is the Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime.

The concept of "group or entity" has been defined in a specific way for this Decision to reflect the fact that it is broader in scope than 2003/48/JHA. It accordingly includes:

-"terrorist groups" within the meaning of Article 2 of Council Framework Decision 2002/475/JHA of 13 June 2002; and

-the groups and entities listed in the Annex to Common Position 2001/931/CFSP.

There is not necessarily a total correlation between the two concepts. It has therefore been felt preferable to refer to the two instruments so as to broaden the scope of the terrorism information exchanges as far as possible.

Article 2

Article 2 is the main provision of the Decision, since it governs information exchanges on terrorist offences.

It is in six paragraphs.

Paragraph 1 takes over Article 2(1) of Decision 2003/48/JHA but drops the phrase "involving any of the listed persons, groups or entities" so as to extend the scope of the information exchanges to all terrorist offences. It takes over the principle that each Member State must designate a specialised service within its police services to receive all relevant information concerning terrorist offences.

Paragraph 2 corresponds to Article 3(1) of Decision 2003/48/JHA. It takes the same principle of the designation of an appropriate judicial or other competent authority that has access to and can collect all relevant information concerning criminal proceedings conducted under the responsibility of the judicial authorities. But its scope is extended to include convictions. And provision is made for a single authority to be designated in each Member State, whereas Decision 2003/48/JHA allowed several authorities to be designated where the Member State's legal system so provides.

The effectiveness of the information collection and transmission system depends on simplicity and centralisation: each Member State must have a single police service and judicial authority for information exchanges.

Paragraph 3 requires each Member State to take the necessary measures to ensure that at least the information referred to in paragraph 4 is transmitted to:

-Europol, in accordance with national law and where the provisions of the Europol Convention so allow, for processing in accordance with Article 10 of that Convention, and in particular paragraph 6; and

-Eurojust, in accordance with national law and where the provisions of the Eurojust Decision so allow, in order to enable Eurojust to perform its tasks.

Paragraph 4 lists the information to be transmitted. The list is based on Articles 2 and 3 of Decision 2003/48/JHA, but it has been amplified to reflect the broader scope of this Decision and to ensure that Europol and Eurojust receive the fullest possible information.

Europol and Eurojust must be sent all relevant information that is available on terrorism so that they can perform their tasks in the best possible conditions.

References to convictions have been added to the lists in Articles 2(2) and 3(2) of Decision 2003/48/JHA: terrorist offences for which a person has been convicted, sentenced or disqualified and criminal record.

The common list for Europol and Eurojust now contains the following:

-data which identify the person, group or entity;

-acts under investigation and their specific circumstances;

-the offence concerned;

-links with other relevant cases of terrorist offences;

-requests for judicial assistance, including letters rogatory, addressed to or by another Member State and the response;

-terrorist offences of which the person has already been convicted and the specific circumstances surrounding them;

-penalties imposed and information regarding their enforcement;

-disqualifications ordered by reason of the conviction;

-prior criminal record.

Only the information provided for by paragraph 5 is reserved solely for Europol. This information, which corresponds to points (c) and (d) of Article 2 of Decision 2003/48/JHA, will be of no use to Eurojust (information relating to the use of communication technologies and the threat posed by the possession of weapons of mass destruction).

Paragraph 6 is taken over from Article 7 of Decision 2003/48/JHA, which will be repealed. It concerns information exchanges between Member States. The only difference concerns the scope, which is broader here. It is no longer confined to the listed persons, groups or entities (annex to common position 2001/931/CFSP). All terrorist offences are now concerned.

Each Member State must take the necessary measures to ensure that any relevant information included in a document, file, item of information, object or other means of evidence, seized or confiscated in the course of criminal investigations or criminal proceedings in connection with terrorist offences can be made accessible or available immediately to the authorities of other interested Member States in accordance with national law and relevant international legal instruments where investigations are being carried out or might be initiated, or prosecutions are in progress in connection with terrorist offences.

Article 3

Article 13 of the Convention on mutual judicial assistance in criminal matters between the Member States of the European Union (OJ C 197, 12.7.2000, p. 3) provides for joint investigation teams to be formed. Framework Decision 2002/465/JHA of 13 June 2002 on joint investigation teams determines the legal rules governing such teams, leaving it open to the Member States to decide whether to use them or not. But the Tampere European Council on 15 and 16 October 1999 asked for investigation teams to be set up without delay, initially to combat terrorism.

Decision 2003/48/JHA went a step further than the earlier instruments. Article 4 provides that "Member States shall, where appropriate, take the necessary measures to set up joint investigation teams in order to carry out criminal investigations into terrorist offences involving any of the listed persons, groups or entities."

Even if it goes beyond the information exchanges which are the main subject-matter of this Decision, the principle of that provision should be preserved, as it adds value over and above the basic instruments on joint investigation teams, which simply introduce the optional possibility of setting them up.

But the scope will be extended. It is no longer confined to the listed persons, groups or entities (annex to common position 2001/931/CFSP). All terrorist offences are now concerned.

And the expression "in appropriate cases" is used in place of "where appropriate" to clarify and strengthen the text.

Article 4

Article 4 concerns requests for mutual legal assistance and recognition and enforcement of judgments. It takes over Article 6 of Decision 2003/48/JHA. The scope is extended to cover all terrorist offences.

Article 5

Article 5 repeals Decision 2003/48/JHA. This is thought to be the best way of making the law easier to read. The new Decision takes over virtually all the provisions of Decision 2003/48/JHA but broadens the scope and reinforces some of them.

Article 5 of Decision 2003/48/JHA has not been taken over in the new Decision and must be regarded as repealed.

It has not been felt useful to take over Article 5 as the list of information items to be supplied to Europol and Eurojust has been unified, with the exception only of those in Article 2(5), which are not relevant to Eurojust.

Article 6

Article 6 governs the entry into force of the Decision.

2004/0069 (CNS)

Proposal for a COUNCIL DECISION on the exchange of information and cooperation concerning terrorist offences

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in particular Articles 29, 30(1), 31 and 34(2)(c) thereof,

Having regard to the proposal from the Commission,

Having regard to the Opinion of the European Parliament,

Whereas:

(1) At its extraordinary meeting on 21 September 2001, the European Council stated that terrorism was a real challenge to the world and to Europe and that the fight against terrorism would be a priority objective of the European Union.

(2) On 19 October 2001 the European Council stated that it was determined to combat terrorism in every form throughout the world and that it would continue its efforts to strengthen the coalition of the international community to combat terrorism in every shape and form, for example by increased cooperation between the operational services responsible for combating terrorism: Europol, Eurojust, the intelligence services, police forces and judicial authorities.

(3) It is essential in the fight against terrorism for the relevant services to have the fullest and most up-to-date information possible in their respective fields. The Member States' specialised national services, the judicial authorities and relevant European Union bodies such as Europol and Eurojust absolutely need information if they are to perform their tasks.

(4) Decision 2003/48/JHA of 19 December 2002 is a major step forward. The persistence of the terrorist threat and the complexity of the phenomenon raise the need for ever greater exchanges of information. The scope of information exchanges must be extended to all stages of criminal proceedings, including convictions, and to all individuals and bodies corporate, groups or entities investigated, prosecuted or convicted for terrorist offences. The information exchanges must be extended in particular to penalties imposed for convictions for terrorism offences, to disqualifications ordered by reason of such convictions and to the criminal record.

(5) The objectives of the proposed action cannot be satisfactorily attained by the Member States acting alone and can therefore, given the need for reciprocity, be better attained by the Union, which may accordingly act in accordance with the subsidiarity principle. In accordance with the principle of proportionality, this Framework Decision does not go beyond what is necessary to attain those objectives.

(6) This Decision respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union,

HAS DECIDED AS FOLLOWS:

Article 1

Definitions

For the purposes of this Decision, the following definitions shall apply:

(a) "terrorist offences": the offences specified in Articles 1 to 3 of Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism [1];

[1] 3 OJ L 164, 22.6.2002, p.3.

(b) "Europol Convention": the Convention of 26 July 1995 on the establishment of a European Police Office [2];

[2] 4 OJ C 316, 27.11.1995, p.2.

(c) "Eurojust Decision": Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime [3];

[3] 5 OJ L 63, 6.3.2002, p.1.

(d) "group or entity": "terrorist groups" within the meaning of Article 2 of Council Framework Decision 2002/475/JHA of 13 June 2002 and the groups and entities listed in the Annex to Common Position 2001/931/CFSP.

Article 2

Exchanges of information concerning terrorist offences

1. Each Member State shall designate a specialised service within its police services, which, in accordance with national law, will have access to and collect all relevant information concerning and resulting from criminal investigations conducted by its law enforcement authorities with respect to terrorist offences.

2. Each Member State shall designate a Eurojust national correspondent for terrorism matters or an appropriate judicial or other competent authority which, in accordance with national law, shall have access to and can collect all relevant information concerning prosecutions and convictions for terrorist offences.

3. Each Member State shall take the necessary measures to ensure that at least the information referred to in paragraph 4 concerning criminal investigations, prosecutions and convictions for terrorist offences, gathered by the relevant authority, is transmitted to:

-Europol, in accordance with national law and where the provisions of the Europol Convention so allow, for processing in accordance with Article 10 of that Convention, and in particular paragraph 6; and

-Eurojust, in accordance with national law and where the provisions of the Eurojust Decision so allow, in order to enable Eurojust to perform its tasks.

4. The information to be transmitted in accordance with paragraph 3 is the following:

-data which identify the person, group or entity;

-acts under investigation and their specific circumstances;

-the offence concerned;

-links with other relevant cases of terrorist offences;

-requests for judicial assistance, including letters rogatory, addressed to or by another Member State and the response;

-terrorist offences of which the person has already been convicted and the specific circumstances surrounding them;

-penalties imposed and information regarding their enforcement;

-disqualifications ordered by reason of the conviction;

-prior criminal record.

5. The following information shall also be transmitted to Europol as provided by paragraph 2:

-the use of communication technologies;

-the threat posed by the possession of weapons of mass destruction.

6. Each Member State shall take the necessary measures to ensure that any relevant information included in document, file, item of information, object or other means of evidence, seized or confiscated in the course of criminal investigations or criminal proceedings in connection with terrorist offences can be made accessible or available immediately to the authorities of other interested Member States in accordance with national law and relevant international legal instruments where investigations are being carried out or might be initiated, or prosecutions are in progress in connection with terrorist offences.

Article 3

Joint investigation teams

In appropriate cases the Member States shall take the necessary measures to set up joint investigation teams to conduct criminal investigations into terrorist offences.

Article 4

Requests for judicial assistance and enforcement of judgments

Each Member State shall take the necessary measures to ensure that requests from other Member States for mutual legal assistance and recognition and enforcement of judgments in connection with terrorist offences are dealt with as a matter of urgency and shall be given priority.

Article 5

Repeal of existing provisions

Decision 2003/48/JHA is repealed.

Article 6

Entry into force

This Decision shall enter into force on the ... day following its publication in the Official Journal of the European Union.

Done at Brussels,

For the Council

The President