Initiative of the Kingdom of Denmark with a view to adopting a Council Decision on the investigation and prosecution of inter alia war crimes and crimes against humanity
Date: 2002-09-19
Institutions: Denmark
Subjects: crime against humanity, criminal procedure, exchange of information, judicial cooperation, judicial inquiry, legal process, terrorism, war crime

19.9.2002

EN

Official Journal of the European Communities

C 223/19

Initiative of the Kingdom of Denmark with a view to adopting a Council Decision on the inves-
tigation and prosecution of inter alia war crimes and crimes against humanity

(2002/C 223/09)

THE COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the initiative of the Kingdom of Denmark,

Having regard to the Opinion of the European Parliament,

Whereas:

(1) The International Criminal Tribunals

the former
Yugoslavia and for Rwanda have since 1995 been inves-
tigating, prosecuting and bringing to justice violations of
law in connection with war, genocide and
international
crimes against humanity.

for

(2) The Rome Statute of the International Criminal Court of
17 July 1998 — which has been signed by all Member
States of the European Union — affirms that the most
serious crimes of concern to the international community
as a whole,
crimes against
in particular genocide,
humanity and war crimes, must not go unpunished and
that their effective prosecution must be ensured by taking
measures at national level and by enhancing international
cooperation.

(3) The Rome Statute recalls that it is the duty of every State
to exercise its criminal jurisdiction over those responsible
for such international crimes.

(4) The Rome Statute emphasises

that
Criminal Court established under it
mentary to national criminal jurisdictions.

the International
is to be comple-

(5) The investigation and prosecution of, and exchange of
information on, genocide, crimes against humanity and
war crimes is to remain the responsibility of national
authorities, except as affected by international law.

(6) Member States are being confronted on a regular basis
with persons who were involved in such crimes and
who are seeking refuge within the European Union's
frontiers.

(7) The successful outcome of effective investigation and
prosecution of such crimes at national level depends to
a high degree on close cooperation between the relevant
national law enforcement and immigration authorities.

at transnational
Parties
States of the European Union.

to the Rome Statute,

level between authorities of the States
including the Member

(9) The Member

States,

Council

Joint Action
in
98/428/JHA (1), created a European Judicial Network
with a view to setting up national contact points to
facilitate judicial cooperation between Member States,
particularly to combat serious crime.

(10) On 13 June 2002, the Council adopted a Decision setting
up a European network of contact points in respect of
persons responsible for genocide, crimes against humanity
and war crimes (2).

(11) In Council Common Position 2001/443/CFSP of 11 June
2001 on the International Criminal Court (3), the Member
States declared that the serious crimes within the juris-
diction of the International Criminal Court are of concern
for all Member States, which are determined to cooperate
for the prevention of those crimes and for putting an end
to the impunity of the perpetrators thereof,

HAS DECIDED AS FOLLOWS:

Article 1

Objective

The aim of
this Decision is to strengthen the possibilities
afforded to Member States for investigating and prosecuting
persons who have
in the
serious offences,
commission of war
including terrorism.

committed or participated
crimes or

similar

Article 2

Cooperation between immigration authorities and law
enforcement authorities

1. With a view to achieving the objective set out in Article
1, Member States shall take the necessary measures to ensure
that the law enforcement authorities are involved to the extent
necessary in the processing of applications
residence
permits. In that connection, Member States shall implement a
system whereby
be
immigration
responsible for informing the law enforcement authorities in
cases where,
in connection with the processing of an
application for a residence permit, facts are established which
give rise to a suspicion that the applicant has committed acts
as referred to in Article 1 which may lead to prosecution in a
Member State or in international criminal courts.

authorities

shall

the

for

(8) The successful outcome of effective investigation and
prosecution of such crimes also requires close cooperation

(1) OJ L 191, 7.7.1998, p. 4.
(2) OJ L . . .
(3) OJ L 155, 12.6.2001, p. 19.

C 223/20

EN

Official Journal of the European Communities

19.9.2002

take the necessary measures to
2. Member States shall
ensure that the relevant national law enforcement and immi-
gration authorities are able to exchange the information which
they require in order to carry out
their tasks under this
provision effectively.

Article 3

Investigation and prosecution

In so far as a person who has applied for a residence
1.
permit is suspected of planning, committing or participating in
the commission of war crimes or similar serious crimes, the
Member States must ensure, in accordance with national law,
that the relevant acts are investigated, and, where justified,
prosecuted.

2. Member States shall assist one another in investigating
and prosecuting such cases in accordance with relevant inter-
national agreements and national law.

in connection with the processing of

3. Where,
an
application for a residence permit, the immigration authorities
become aware of facts which give rise to a suspicion that the
applicant has participated in acts as described in Article 1, and
the applicant has previously sought
where it emerges that
the law
permission to reside in another Member State,
enforcement authorities may apply to the competent
law
enforcement authorities in the latter Member State with a
view to obtaining relevant information, including information
from the immigration authorities. The exchange of information
pursuant to this provision shall take place in accordance with
relevant international agreements and national law.

In so far as the law enforcement authorities in a Member
4.
State become aware that a person suspected of acts as referred
to in Article 1 is in another Member State, they shall inform
the competent authorities in the latter Member State of their
suspicions and the basis thereof. Such information shall be
provided in accordance with relevant international agreements
and national law.

Article 4

Structures

Member States shall take the necessary measures to ensure that
the law enforcement and immigration authorities have the

appropriate resources and structures to guarantee the proper
and effective investigation and prosecution of
the offences
referred to in Article 1. In that connection, Member States
shall consider the need to set up or designate specialist units
with particular responsibility for investigating and prosecuting
the offences in question.

Article 5

Coordination and periodic meetings

1. Member States shall coordinate ongoing efforts. Member
States shall exploit as fully as possible cooperation within the
European Judicial Network in accordance with Joint Action
98/428/JHA.

at

shall meet

coordinators

2. Member States shall appoint national coordinators for the
investigation of war crimes. At the Presidency's initiative, the
national
in
conjunction with meetings within the European Judicial
Network with a view to exchanging information about
experiences, practices and methods. Depending on the circum-
stances,
International Criminal
from the
Tribunals for the former Yugoslavia and for Rwanda and the
International Criminal Court shall also be invited to take part
in such meetings.

representatives

intervals

regular

Article 6

Implementation

Member States shall take the necessary measures to comply
with this Decision by [. . .] (*).

Article 7

Entry into force

This Decision shall take effect on the day of its publication in
the Official Journal of the European Communities.

Done at Brussels, . . .

For the Council

The President

. . .

(*) Two years after the date on which the Decision is adopted.