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 -------------- SUMMARY -------------- ¶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. -------------- CREATION OF EUROJUST -------------- ¶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." BRUSSELS 00001500 002 OF 005 -------------- ORGANIZATION'S COMPOSITION -------------- ¶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. -------------- CURRENT AND POTENTIAL ROLES -------------- ¶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 BRUSSELS 00001500 003 OF 005 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. -------------- EXTERNAL RELATIONS -------------- ¶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. -------------- -- MUTUAL RECOGNITION AND EUROPEAN ARREST WARRANTS -------------- -- ¶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 BRUSSELS 00001500 004 OF 005 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. -------------- TRANSFER OF CRIMINAL RECORDS -------------- ¶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 BRUSSELS 00001500 005 OF 005 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.) -------------- DATA PROTECTION -------------- ¶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. . . -------------- COMMENT -------------- ¶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 .