A4-0058/98

Resolution on judicial cooperation in criminal matters in the European Union

The European Parliament,

- having regard to Article K.1 of the Treaty on European Union, which defines judicial cooperation in civil and criminal matters as a question of common interest to the Member States,

- having regard to Article B of the Treaty on European Union, which lists among the objectives of the Union the need to develop close cooperation on justice and home affairs,

- having regard to the Council Resolution of 14 October 1996 laying down the priorities for cooperation in the field of justice and home affairs for the period from 1 July 1996 to 30 June 1998 ((OJ C 319, 26.10.1996, p.1.)),

- having regard to the report of the High Level Group on Organized Crime and the action plan on the subject adopted by the Council of Ministers for Justice and Home Affairs on 28 April 1997 and approved by the European Council on 17 June 1997 in Amsterdam, and in particular Chapter II, paragraph 5(d) thereof, which states that cooperation in legal affairs should reach a level similar to that between police forces ((OJ C 251, 15.08.1997, p. 1)),

- having regard to the proposals for joint actions concerning measures to combat organized crime recently submitted to Parliament for its opinion, and in particular the proposals on setting up a European judicial network and making it a crime to participate in a criminal organization in the Member States of the Union,

- having regard to the European Convention for the Protection of Human Rights and Fundamental Freedoms and the protocols thereto,

- having regard to its resolution of 26 June 1997 on the meeting of the European Council on 16/17 June 1997 in Amsterdam ((OJ C 222, 21.07.1997, p. 17.)) and its resolution of 19 November 1997 on the new Treaty of Amsterdam (CONF 4007/97 - C4-0538/97) ((Minutes of that sitting, Part II, Item 20.)),

- having regard to its resolutions of 22 October 1997 on the Commission's 1996 Annual Report (COM(97) 0200 - C4-0230/97) and its Work Programme for 1997/98 on the protection of the Community's financial interests and the fight against fraud (COM(97)0199 - C4-0231/97) ((Minutes of that sitting, Part II, Item 14.)), 19 September 1996 on the follow-up to the interparliamentary conference on combating fraud against the Community budget (23 and 24 April 1996): for concerted action by the Union and the Member States ((OJ C 320, 28.10.1996, p. 212.)) and on the Convention for the protection of the European Communities' financial interests ((OJ C 320, 28.10.1996, p. 215.)), 21 June 1996 on the first Commission report to the European Parliament and the Council on implementation of Directive 91/308/EEC on money laundering (COM(95)0054 - C4-0137/95) ((OJ C 198, 8.7.1996, p. 245.)), 13 March 1996 embodying (i) Parliament's opinion on the convening of the Intergovernmental Conference, and (ii) an evaluation of the work of the Reflection Group and a definition of the political priorities of the European Parliament with a view to the Intergovernmental Conference ((OJ C 96, 1.4.1996, p. 77.)), 15 December 1995 on combating corruption in Europe ((OJ C 17, 22.1.1996, p. 443.)), its opinion of 30 November 1995 on the joint guideline established by the Council with a view to adopting a Regulation on the protection of the Communities' financial interests ((OJ C 339, 18.12.1995, p. 61.)), its resolutions of 17 May 1995 on the functioning of the Treaty on European Union with a view to the 1996 Intergovernmental Conference - Implementation and development of the Union ((OJ C 151, 19.6.1995, p. 56.)),16 December 1993 on combating international fraud ((OJ C 20, 24.1.1994, p. 185.)), its decision of 17 April 1991 on prevention of use of the financial system for the purpose of money laundering ((OJ C 129, 20.5.1991, p. 90.)), its opinion of 22 November 1990 on the proposal for a Council Directive on prevention of use of the financial system for the purpose of money laundering ((OJ C 324, 24.12.1990, p. 264.)),

- having regard to the instruments, whether in the form of conventions or other acts, relating to European judicial cooperation and mutual assistance in criminal matters, in particular the Council of Europe Convention of 20 April 1959 on mutual assistance in criminal matters,

- having regard to the Geneva Appeal signed on 1 October 1996 by various European magistrates, which has secured broad consensus in many quarters and in Community and national institutions, and the Brussels Declaration of 12 December 1997,

- having regard to Rule 148 of its Rules of Procedure,

- having regard to the report of the Committee on Civil Liberties and Internal Affairs and the opinions of the Committee on Institutional Affairs and the Committee on Budgetary Control (A4-0058/98),

A. having regard to the vital importance of judicial cooperation between the Member States of the European Union in the interests of combating international organized crime effectively and as a tangible expression of European judicial culture, particularly as regards criminal matters and proceedings relating to organized crime,

B. whereas the instruments available to the judicial authorities must be better adapted to the complexities of contemporary crime and the procedures used to deal with it, especially as regards speed and efficiency, making use of the most advanced technological means,

C. whereas, for historical and political reasons, the legal culture, traditions and systems of Member States (and indeed of the constituent parts of some Member States) inevitably differ, but this should not in itself prove an insurmountable obstacle to successful cooperation,

D. whereas, despite these different traditions and systems, the Union recognizes shared values and basic principles, such as the rule of law, the principle of legality and the rights of the defence,

E. whereas the way in which judicial cooperation operates at present cannot be seen as satisfactory either in terms of speed or continuity, because of the inadequacy of the legal and practical instruments available and the still inadequate training of those working in the field of justice,

F. whereas judicial cooperation is one of the most sensitive sectors for the Member States and whereas the road towards harmonization of criminal justice systems or the attainment of a sufficiently homogeneous European justice system will be long and arduous,

G. whereas , in order to move more swiftly along this road, European judicial cooperation must nevertheless advance with immediate effect, by increasing mutual trust on the part of the Member States in their partners' legal systems and the way they operate,

H. whereas, in addition to the traditional instrument of conventions, cooperation could be based on greater and more effective use of European instruments such as joint actions and, in future, the framework decisions provided for in the Treaty of Amsterdam (Article K.6),

I. whereas conventions and other instruments of judicial cooperation in criminal matters are difficult to apply, as a result of duplication and the many derogations, separate declarations and reservations they include,

J. whereas many of the conventions so far concluded among the Member States still remain unimplemented because of the long delays needed for national ratification,

K. whereas the dual criminality rule is no longer required in several Member States and may today reasonably be seen as an obstacle to cooperation in criminal matters,

L. having regard to the positive examples of closer cooperation already existing between certain States in the Union, whereby provision is made inter alia for direct communication between the judicial authorities as a regular channel for such cooperation,

M. whereas technological innovation and modern investigative techniques mean that appropriate new legal instruments must be introduced (tapping via satellite, remote hearings or interrogations, etc.),

N. having regard to the measures adopted at legislative and operational level in the European Union for the protection of financial interests, which, having proved effective, could serve as a model for similar measures to combat other serious forms of organized crime,

O. concerned at the difficulties engendered for judicial cooperation by money laundering, mainly as a result of the lack of standard provisions under national laws governing offences which give rise to money laundering operations,

P. having regard to the strategic importance, in order to ensure that judicial cooperation in Europe works effectively, of an adequate level of mutual assistance, including the training of personnel, vis-à-vis third countries, particularly those applying for accession, and also non-European countries as far as possible,

Q. whereas, at the current stage in the development of the Union, the whole idea of judicial assistance as a traditional instrument of intergovernmental cooperation needs to be rethought,

R. having regard to the 'Corpus Juris' study entrusted to a group of experts by the Commission, at the behest of the European Parliament, and in particular the principles and provisions of criminal procedure considered in the study, such as the new principle of European territoriality,

S. whereas closer Union-wide judicial cooperation in criminal matters will have implications as regards respect for the rights of the defence,

I. General principles and institutional aspects

1. Stresses the need to develop judicial cooperation among the Member States of the European Union, especially in criminal matters, with a view to combating cross-border crime more effectively;

2. Stresses that the Union's objective of creating an area of freedom, security, and justice and attaining full free movement of persons and a complete single market will be impossible to achieve without establishing a common European legal and judicial area; welcomes in this connection the clarifications regarding the measures to be taken at European level in the field of judicial cooperation in criminal matters provided by Article K.3 of the Treaty of Amsterdam:

3. Notes that the adoption of minimum common rules relating to the constituent elements of criminal acts and to penalties in the field of organized crime, terrorism and drug-trafficking, as laid down in the Treaty of Amsterdam, represents an important step on the road towards more effective cooperation;

4. Welcomes the simplifications provided for in the Treaty of Amsterdam with regard to the ratification and entry into force of conventions, pursuant to Article K.6 of the Treaty, the effectiveness of which are certainly thereby improved; points out, nevertheless, that as regards the harmonization of legal and administrative provisions, the framework decision instrument should take precedence, since in procedure and character it corresponds more closely to the Community system and method;

5. Refers to the provisions of Article K.12 of the Treaty of Amsterdam relating to the possibility of closer judicial cooperation in criminal matters and invites the Member States and the Commission to examine the practicability and applicability of those provisions, with particular reference to the resolution of those relevant major issues where only a small number of Member States prevent closer cooperation and hence progress;

6. Points out, however, that with regard also to the sector of judicial cooperation in criminal matters, the questions of effective participation by the European Parliament in the legislative process and recognition of the role of the Court of Justice have yet to be properly resolved;

7. Is convinced that closer cooperation at European level in this field must be accompanied by guarantees in respect of democratic control: in this context, restricting Parliament to a consultative role, which can furthermore be rendered more difficult by Council decisions setting time-limits, represents a weakness which will have to be removed when the Treaty is next revised;

8. Considers that, from a more general standpoint, the process of creating a European legal and judicial area must be accompanied by the establishment of basic democratic rules (parliamentary and judicial control);

9. Stresses that judicial cooperation activities must be conducted with due regard for the constitutional principles of the Member States and the provisions of the European Convention on Human Rights; is concerned that, as far as judicial cooperation in criminal matters is concerned, the Treaty of Amsterdam does not lay down as mandatory the jurisdiction of the Court of Justice to make preliminary rulings, but actually rules it out automatically until such time as a Member State expressly recognizes it individually and draws up the relevant rules; sees therein a danger that the progress made by the Treaty of Amsterdam in terms of judicially enforceable protection of human rights could be called into question;

10. Calls for closer judicial cooperation in criminal matters to be supplemented by an assessment of its consequences as regards the rights of the defence and by recommendations aimed at safeguarding those rights;

II. Conventions

11. Requests the national governments and parliaments to make every effort to ensure that ratification procedures for conventions on judicial cooperation within the European Union are speeded up;

12. Condemns the fact that, in many cases, conventions allow the Member States to include reservations, derogations and declarations, with the result that they are not uniformly applicable in the Union;

13. Calls, therefore, on the Member States to establish all the procedural means required to remedy the slowness of the judicial system and guarantee the right to a trial within a reasonable time, as provided for in Article 6 of the European Convention on Human Rights;

14. Recommends that the governments of the Member States refuse to accept reservations, derogations or declarations annexed to conventions on this subject, when they are by other Member States of the European Union;

15. Requests in particular that the dual criminality rule be abandoned or reviewed by the Member States of the European Union;

16. Endorses the requests and proposals contained in the 'Geneva Appeal' (drawn up by various European magistrates) and developed at the recent international convention in Brussels, particularly those concerning the conclusion of agreements between European States on direct communication between magistrates prior to an investigation (as already provided for in the Schengen Agreement) and the setting of firm and prompt deadlines for complying with letters rogatory and requests concerning the forwarding of evidence in the criminal procedures of the Member States;

17. Stresses that, in cases of judicial cooperation between justice ministries, the diplomatic channel should no longer be obligatory, and that, in cases of direct judicial cooperation between the judicial authorities, the latter should have effective structures for technical and operational assistance at their disposal in order to ensure, in both cases, the swiftest cooperation;

18. Calls on the governments of the Member States and the Presidency of the Council of the Union to give fresh impetus to the work of drawing up a new convention on judicial assistance in criminal matters, which has been in progress since the first half of 1996, and reiterates its request to be consulted in advance on the new convention, in good time to enable the parliamentary consultation procedure to be fully completed; requests in particular that the new convention contain specific provisions on deadlines for judicial assistance and provisions effectively regulating the introduction of new investigative techniques;

19. Notes with disquiet that little real progress has been achieved in some of the eight areas of activity specified in the Council resolution of 14 October 1996 referred to above; maintains that action needs to be taken in every area but nevertheless considers it particularly important to make full use of the Community's powers to protect its financial interests, since this would set a precedent for proceedings relating to points of substantive and procedural law applicable to the other listed areas;

III. Approximation of laws and protection of the Union's financial interests

20. Stresses the importance of approximating criminal, substantive and procedural laws, as provided for in the recent action plan on organized crime adopted by the Council; calls in particular for provision to be made for joint indictments for some of the most serious crimes (as provided for in the joint action on participation in a criminal organization); in this connection, the term 'money laundering' should refer to the proceeds of any kind of crime, the term 'corruption' should involve any act of abuse committed by a person holding public office, regardless of nationality, and all serious tax violations should constitute a crime provided that the term 'violations' is harmonized;

21. Calls for measures to be taken to standardize provisions on penalties and evidence and for the rules governing seizure and confiscation to be harmonized without compelling any country on that account to depart from the fundamental principles of its legal system;

22. Reiterates the need for Council Directive 91/308/EEC of 10 June 1991 on prevention of the use of the financial system for the purpose of money laundering ((OJ L 166, 28.6.1991, p. 77.)) to be fully implemented by the Member States, especially as regards not allowing banking secrecy to be invoked when criminal proceedings are brought; urges the Commission to ensure that the directive is applied, notably by making use of Article 69 of the EC Treaty, and to submit proposals to amend it, both as regards the definition of the offence and the sphere of activities it covers;

23. Considers that, given the links frequently existing between Community fraud and organized crime, judicial cooperation to protect the Community's financial interests should immediately be strengthened and coordinated with existing forms of mutual administrative assistance, to see whether the operating methods used can be extended to judicial cooperation in other sectors such as Internet crime and in general the new forms of crime emerging in the information society;

24. Supports the idea of entrusting to the Unit on Coordination of Fraud Prevention (UCLAF) the Community's responsibilities for coordination and technical and operational assistance for national judicial authorities in criminal proceedings designed to protect the Community's financial interests; believes that the UCLAF should be given all the material and professional resources needed to carry out this task effectively;

25. Supports the idea of compiling a basic core of criminal, substantive and procedural rules concerning Community fraud, including the establishment of a form of European public prosecutor's office, as provided for in the Corpus Juris proposed by the Commission, in response to a request by Parliament, based on the work of a group of experts;

IV. Third countries

26. Considers it vital to establish effective judicial cooperation with third countries, particularly countries which have applied for accession and those situated within continental Europe, failing which the prospects of successfully bringing proceedings in one of the Member States for cross-border offences, particularly those committed over the Internet, would risk being seriously jeopardized;

27. Calls on the Commission to explore all possibilities of using the GROTIUS and PHARE programmes or other programmes under way to assist the applicant countries and, in the long term, to make funds available for the Falcone programme so that in the future it may incorporate countries outside the Union (e.g. Russia, Belarus, Ukraine) which border on the applicant countries;

28. Welcomes the inclusion of Article K.10 in the Treaty of Amsterdam and calls on the Council to use it to negotiate agreements with third countries, with a view in particular to adopting a common policy towards off-shore countries and so-called 'tax havens', as provided for in recommendation 30 of the action plan on organized crime;

V. Final remarks

29. Calls on the Commission and Council to organize during the current year a joint conference with the national parliaments and the European Parliament on judicial cooperation and the strategies to improve the effectiveness of legal and judicial systems;

30. Instructs its President to forward this resolution to the Council, the Commission and the governments and parliaments of the Member States.