EUROJUST'S EVOLVING ROLE IN INVESTIGATING AND

UNCLAS SECTION 01 OF 05 BRUSSELS 001500

SENSITIVE
SIPDIS

STATE FOR INL/FO, INL/PC, EUR/ERA, L/LEI;
JUSTICE FOR CRIMINAL DIVISION, OFFICE OF INTERNATIONAL
AFFAIRS;
HOMELAND SECURITY FOR OFFICE OF INTERNATIONAL AFFAIRS

E.O. 12958: N/A
TAGS: KCRM PGOV PREL SNAR EUN
SUBJECT: EUROJUST'S EVOLVING ROLE IN INVESTIGATING AND
PROSECUTING TRANSNATIONAL CRIMES

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SUMMARY
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1. (U) The President of the European Union's Judicial
Cooperation Unit (EUROJUST),Jose Luis Lopes da Mota, and the
Chairperson of EUROJUST's External Relations Committee, Malci
Gabrijelcic, explained their organization's increasing role
in investigating and prosecuting serious organized crime
within the European Union (EU). Speaking at a September 19
Justice and Home Affairs (JHA) "Third Country" Luncheon
hosted by the U.S. Mission for diplomats from 16 non-EU
nations, they noted the important, evolving role of EUROJUST,
established just five years earlier, in supporting the
coordination of investigations and prosecutions of serious
organized crimes that affect two or more EU Member States and
often external nations. Last year, EUROJUST collaborated on
over 1,000 criminal cases. EUROJUST's president predicted a
stronger role in coordinating such investigations and
prosecutions, especially if the Treaty of Lisbon is ratified
and the EU decides to create an Office of European Public
Prosecutor. END SUMMARY.

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CREATION OF EUROJUST
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2. (U) During a JHA Luncheon hosted by the U.S. Mission for
colleagues from 16 non-EU countries, EUROJUST President Lopes
da Mota provided an overview of the creation and roles of
this international prosecutor institution. Lopes da Mota
described the creation of EUROJUST as part of globalization.
Along with trade, migration, and other phenomena, organized
crimes have become increasingly transnational and global,
affecting citizens in multiple countries. EUROJUST was
established to fight such transnational crimes, including
organized crime, money laundering, drug trafficking, arms
trafficking, trafficking in persons, international fraud, and
offenses related to terrorism. Individual Member States
retain primary jurisdiction over defining and combating
crimes, but the growth of cross-border crimes has required
national authorities to cooperate in a more coordinated
manner in investigating and prosecuting such crimes. The
decision by EU Member States to eliminate internal border
controls (under Schengen) has placed a premium on such
coordination.


3. (U) According to Lopes da Mota, EU leaders established
EUROJUST to further the process of judicial collaboration
directed at fighting serious crimes. As criminals became
more organized, authorities had to put into place more
intrusive measures to fight criminal activities. Over time,
police had to develop innovative investigative measures,
including controlled deliveries, wiretaps, and use of
undercover agents, which often required authorization from
judicial authorities. Investigators and prosecutors learned
to work together more effectively, rather than keeping
investigations and prosecutions segregated into separate
phases. As criminal investigators were learning to cooperate
across borders, during the 1990's, judicial authorities also
came to recognize the importance of such cooperation.
According to Lopes da Mota, the establishment of EUROJUST
stemmed in part from developments within the Council of
Europe (COE) (based in Strasbourg, France). EUROJUST became
a tangible reality in 2001, and originally located its
offices at the Council Secretariat's Justus Lipsius Building
in Brussels. In December 2002, EUROJUST moved to its present
offices in The Hague, where it is co-located with the
International Criminal Court (ICC). The separate European
Police Organization (EUROPOL),established in 1999, also has
its headquarters at The Hague. Lopes da Mota admitted that
EUROJUST, now at five years since its creation, remains in
its "developing phase."


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ORGANIZATION'S COMPOSITION
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4. (U) The EU Member States each send a National Member to
EUROJUST, usually a prosecutor or investigating magistrate.
While EUROJUST initially had 15 National Members, they have
grown to 27, with the addition of new Member States. Most
National Members have a team of assistants, often including a
deputy prosecutor or police investigator. Accordingly,
EUROJUST has a mix of judges, prosecutors, and police
investigators, depending on whether the home state's legal
system has single or separate career tracks for judges and
prosecutors. The overall organization has an annual budget
of some 20 to 25 million euros. During the most recent
calendar year (2007),EUROJUST provided support in over 1,000
criminal cases. As described by Gabrijelcic, at least four
non-EU nations, including the United States, Canada, Norway,
and Japan, have a liaison relationship to EUROJUST, with the
United States and Norway providing liaison prosecutors in the
Hague to assist in pertinent trans-border criminal matters.


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CURRENT AND POTENTIAL ROLES
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5. (U) According to Lopes da Mota, EUROJUST National Members
and staff currently work on cross-border investigations and
prosecutions in their pre-trial phase. Their role is to
promote and support such coordination; they do not now have
the authority to direct or order actions. Under their
current mandate, EUROJUST officials can only make
recommendations or requests. Nonetheless, EUROJUST officials
work closely with established points of contacts within the
individual Member States to support coordination of cases,
and investigators no longer need to seek information via the
cumbersome process of transmitting letters rogatory.
National Members often communicate directly via telephone and
facsimile without having to communicate through Foreign or
Justice Ministries. The EUROJUST President noted that the
process places responsibilities on the prosecutors themselves
to promote such coordination proactively, rather than waiting
for information to come as requests through more formal
diplomatic or judicial channels. He also mentioned that the
European Judicial Network serves as a separate mechanism for
coordination among Member States.


6. (U) Noting that defendants cannot be tried in different
jurisdictions for the same conduct ("non bis in edem"),Lopes
da Mota remarked that in a conflict of jurisdiction, EUROJUST
Members play important roles in recommending the best site
for prosecution of a case. They also play vital roles in
coordinating multiple arrests and conducting searches of
suspects' properties simultaneously in different member
states to prevent suspects from fleeing to different
jurisdictions or moving evidence. Such simultaneous
searches, for example, have played important roles in
investigating far-flung criminal networks involved in using
the Internet for child exploitation and child pornography.


7. (U) The Treaty of Lisbon, if ultimately ratified (N.B.,
Irish voters rejected the Treaty in a June referendum),would
expand the "acquis" or common legal framework for EUROJUST.
One provision provides the option of creating the office of a
European Public Prosecutor (EPP) within EUROJUST, with a
grant of expanded powers. Instead of merely "supporting"
coordination of criminal cases, EUROJUST and the EPP would be
able to "coordinate" such cases directly. Under expanded
powers from the Treaty of Lisbon, EUROJUST would be able to
"decide" to prosecute cases. EUROJUST officials would also
have greater authority in deciding disputes over jurisdiction
rather than making recommendations over which member states
should prosecute a case based on the evidentiary strengths

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and the relative harms suffered as a result of the underlying
crime. Lopes da Mota observed that EUROJUST could in the
future become a "college of national prosecutors," rather
than its current status as a "college of individual
prosecutors who cannot prosecute cases." He noted (with some
frustration) that, in his current position as EUROJUST
President, he cannot even direct prosecutions of cases, as he
did previously as a Deputy Public Prosecutor in his home
country of Portugal. He predicted, however, that EUROJUST
will move from its relatively humble origins in the 1999
Tampere process (a work program for the Freedom, Security,
and Justice area) to assume robust roles in a new EUROJUST
that could, for example, protect the financial interests of
the EU. Currently, most Member States do not define
fraudulent acts against the EU as national crimes.

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EXTERNAL RELATIONS
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8. (U) EUROJUST's External Relations Team Chairperson
Gabrijelcic provided a brief description of EUROJUST's
relationships with countries outside the EU. Echoing once
more that criminals do not recognize national borders, she
noted that strengthening relations with third nations has
become an important factor in fighting organized crime by
establishing contacts and promoting cooperation. The
Framework Decision on EUROJUST stipulates the types of
external cooperation in which EUROJUST may engage. As a
result EUROJUST established the External Relations Team to
work with international partners to share information on
criminal investigations. When necessary, they attempt to
speed up implementation of mutual legal assistance requests.
In addition to the network of liaison prosecutors, EUROJUST
has signed cooperative agreements with various countries,
including the United States, Iceland, Norway, and Croatia,
and plans to conclude similar agreements this year with
Switzerland and Macedonia. Such agreements provide the legal
grounds for exchanging information in criminal matters and
facilitating cooperation and coordinated actions in parallel
investigations. EUROJUST officials also host visits by
delegations from many countries, including brief orientation
visits and longer "study visits." Officials from Japan and
South Korea have visited recently, as will representatives
from Ukraine in the near future. Gabrijelcic said that,
along with the United States and the European Commission,
EUROJUST planned to host a seminar in November in The Hague
on implementation of the U.S.-EU Mutual Legal Assistance and
Extradition Agreements.

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MUTUAL RECOGNITION AND EUROPEAN ARREST WARRANTS
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9. (U) In response to a question, The EUROJUST President
described the principle of mutual recognition, creation of
the European Arrest Warrant (EAW),and the role of EUROJUST
in implementing the EAW process. He explained that, under
the principle of mutual recognition, the orders of the
judicial authorities of one Member State should be recognized
as having the same legal effects as decisions by judges in
other Member States. He observed that the 1950 Convention of
the Council of Europe on Human Rights, as well as established
case law related to that convention laid the ground work for
Member States to trust each other regarding judicial
decisions in criminal cases. Moreover, Article Six of the
Treaty of the European Union stipulated that, as a matter of
trust, all Member States shall abide by the same rules on
respecting individual rights. Over a 50-year process of
"sedimentation," the Member States have agreed upon common
interpretations of various rights, such as respect of privacy
and the elements of fair trials.


10. (U) Under the premise that all Member States respect the

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rights of individuals at equal levels of protection, the
European Union created the European Arrest Warrant to
supplant lengthy extradition procedures. Now, judicial
authorities issue orders compelling the presence of criminal
fugitives. A judicial atlas contains the names of such
persons and information on the crimes for which they are
wanted and the points of contact for the court that issued
the decision. Authorities throughout the EU can then access
the information in the judicial atlas with passwords, and
they can detain and transfer these fugitives to the
jurisdiction of the court that issued the warrant. If the
fugitive's location is known, the judge cn send the
information directly to a judge inthat locale. More often,
the fugitive's location is not known, and authorities enter
such information into the Schengen Information System (SIS),
which has its central data base in France. Authorities in
each Member State access such information on a daily basis
and arrest those for whom warrants have been issued when they
are found. Under the former extradition system, the process
of transfer often took one to two years. Under the EAW, such
transfers can occur within days or weeks. Lopes da Mota
noted that transfers that do not occur within a maximum of 40
days must be reported to EUROJUST officials, who can then
attempt to expedite the transfer.


11. (U) In response to another question about how conflicts
of jurisdiction are resolved when Third Nations have also
requested the extradition of individuals who are subjects of
European Arrest Warrants, the EUROJUST President responded
that national authorities must decide such issues on a
case-by-case basis. In some instances, the individuals may
already be serving a prison term. If the person is serving a
lengthy sentence, then the national authorities can negotiate
provisional surrenders to allow prosecution of the person in
the third country while witnesses and evidence remain
available. It was urged that EUROJUST set standard criteria
for such decisions on conflicting jurisdictions that would
apply equally when Third Nations were involved.


12. (U) In comments from and among Third Nation JHA
Counselors, one noted that while police in the EU at SIRENE
(Supplementary Information Requests at the National Entry)
Offices enjoyed access to EAW data entered into SIS, they did
not necessarily have access to information on the existence
of pending extradition requests from Third Nations. Lopes da
Mota suggested that authorities should consider creating a
link between the SIS and International Criminal Police
Organization (INTERPOL) databases for this purpose. A JHA
Counselor acknowledged that even two EU Member States, the
United Kingdom and Ireland, currently do not have access to
EAW data in SIS (because they had opted out of the Schengen
system.) Another representative indicated that the
long-delayed, second generation of SIS (SIS II),when
ultimately operational, should remedy the problem of access
to EAW data by the UK and Ireland. Nonetheless, he noted the
critical need to establish a linkage between the INTERPOL and
SIS II databases to permit local police to know which persons
were subject both to pending extradition requests and EAWs.
Another Third Nation representative expressed hope that
information on lost and stolen passports would be entered
into SIS II from the INTERPOL database. The first
representative, while agreeing with this idea, clarified that
no final decision had been made by the EU on this issue. In
addition, he noted that EU Member States had not yet agreed
to the input of data on pending extradition requests from
non-EU nations into the SIS II database.

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TRANSFER OF CRIMINAL RECORDS
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13. (U) Another participant inquired about the ability to
transfer criminal records under a Council of Europe
Convention initially signed about 40 years ago, but which has

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not yet entered into force. The EUROJUST President explained
that only 12 to 15 of the 47 members of the Council of Europe
have ratified this Convention, not all of whom are EU Member
States. He added that the EU had prepared a "Green Paper"
three or four years ago on conflicts of jurisdiction, but
noted with frustration that countries were still grappling
with the issue despite discussions during the past 40 years.
He advocated developing constructive and practical approaches
to such issues. For example, under the 2000 Convention of
Palermo Against Organized Crime, the United Nations Office of
Drugs and Crime (UNODC) has responsibility for providing
technical assistance to countries. To his knowledge, this
instrument is the first United Nations legal instrument that
stipulates that States Parties "shall coordinate" on such
assistance. Occasionally, EUROPOL officials invite
prosecutors and investigators of different countries working
on the same criminal case to their facilities to discuss and
resolve differences. The EUROJUST President advocated that
such actions should occur more often. (N.B.: A Framework
Decision on creating a European Evidence Warrant has
languished for years after the Council initially provided its
political agreement, but all Member States have not provided
final approval by removing their parliamentary reservations.)

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DATA PROTECTION
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14. (SBU) On the issue of sharing information between
countries that have different data protection rules, Lopes da
Mota advocated use of a very practical approach. He said
judges should exchange such information directly and not
through EUROJUST itself to avoid difficulties.
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COMMENT
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15. (SBU) EUROJUST is a relatively new institution within the
EU bureaucracy. Just last year, it officially attained legal
status as an EU agency and will now have access to a budget
from the Commission rather than depending more directly on
contributions from EU member states. In terms of supporting
investigations and prosecutions, EUROJUST remains a long way
from meeting its full potential. Over time, however,
EUROJUST will gain authority as Member States become more
comfortable with the idea of coordinating criminal
investigations and prosecutions with each other on
cross-border crimes. The eventual establishment of a
European Public Prosecutor, whether within or outside the
framework of an as-yet-unratified Lisbon Treaty, will go a
long ways towards enhancing EUROJUST's powers and
capabilities. Moreover, one clear consensus of the
representatives of the 16 non-EU nations at the September 19
JHA luncheon was that coming together and discussing issues
of mutual concern was a welcome opportunity for all. END
COMMENT.

MURRAY
.