European Law Critically examine the role, and internal and external governance, of TWO multilateral police cooperation arrangements Essay

European Law Critically examine the role, and internal and external governance, of TWO multilateral police cooperation arrangements Essay

This paper will look to critically examine the role, and internal and external governance of two multilateral police co-operation arrangements namely in Europol (European Police Office) and Eurojust. In so doing it will be necessary to begin by initially briefly outlining the scope of the respective organisations to be comparatively examined before moving on to indicate the specific international roles of the bodies or arrangements, their governance and accountability and relate this to levels of institutionalisation, before looking to finally conclude upon this issue.

To begin with it is important to appreciate that Europol is the European Unions (EUs) criminal intelligence agency that became fully operational in 1999 – agreed to in the 1992 Maastricht Treaty, officially known as the Treaty on European Union (TEU) – that started limited operations in 1994, as the Europol Drugs Unit (EDU) and, in 1998, the Europol Convention was ratified by all the EU member states and came into force. However, the size of Europol belies the fact they are in constant liaison with hundreds of different law enforcement organisations, each with their own individual or group seconded to assist Europols activities. This is because Europol’s aim is to improve the effectiveness and co-operation between the competent policing authorities of the member states by sharing and pooling intelligence to prevent and combat serious international organised crime by making a significant contribution to the EUs law enforcement efforts. Nevertheless, Europol has no executive powers because it is really only a support service for the law enforcement agencies of the EU member states. Therefore Europol officials are not entitled to conduct investigations in the member states or to arrest suspects, but it can contribute to the executive measures carried out by national authorities as three different levels of co-operation are possible 1) technical co-operation or to provide training; 2) strategic co-operation aimed at exchanging general trends in organised crime and how to fight it and the exchange of threat assessments; and 3) co-operation regarding the exchange of personal data that requires the fulfilment of Europols standards in the field of data protection and data security.

However, whilst Eurojust is also an EU body composed of a co-operative arrangement between national prosecutors and magistrates, it also serves as another example of multilateral police co-operation as police officers of equivalent competence from each of the EUs member states also help to serve to enhance the effectiveness of the national authorities when they are dealing with the investigation and prosecution of cross-border and organised crime. Therefore, Eurojust serves to stimulate and improve the co-operation between the competent policing authorities of the Member States by facilitating the execution of international mutual legal assistance and the implementation of extradition requests in order to render their investigations and prosecutions more effective when dealing with cross border crime. This is because Eurojust hosts meetings, with translation facilities, between investigators and prosecutors from different states dealing with individual cases and at a strategic level regarding specific types of criminality. It was established as a result of a decision of the European Council of Tampere in 1999 to establish a permanent judicial co-operation Unit called Eurojust in order to improve the fight against serious crime and, in 2000, the Council of the EU formally established a provisional judicial co-operation Unit with the name of Pro-Eurojust to be Eurojusts forerunner to allow concepts of Eurojust to be tried and tested

Title VI of the Treaty of Amsterdam (ToA) recognised Provisions on Police and Judicial Cooperation in Criminal Matters set out the foundations for transferring some aspects of policing from the intergovernmental co-operation sphere of the Third Pillar to the EU institutional framework of the First Pillar because the Union’s objective shall be to provide citizens with a high level of safety within an area of freedom, security and justice by developing common action among the Member States in the fields of police and judicial cooperation in criminal matters and by preventing and combating racism and xenophobia under Article 29 of the ToA. Therefore, with this in mind, Europol that had previously stood as an organisation separate from the EU is now incorporated as the mechanism through which co-operation is to be enhanced and even directed under Article 30(2) of the ToA. Moreover, the Presidency Conclusions of the European Council of Tampere serve to reinforce the impetus of the ToA by calling for the joint mobilisation of police and judicial resources … to guarantee that there is no hiding place for criminals or the proceeds of crime within the Union at paragraph 6.

However, what is of particular concern to the EU is trafficking (in whatever commodity) and financial fraud (Knudsen (1998)). Therefore, having taken 40 years to establish a sophisticated, supranational economic infrastructure, the EU is understandably concerned with protecting it from levels of organised criminality that cannot have been foreseen at the time of the Treaty of Romes signing in 1957. On this basis, the aforementioned Presidency Conclusions call for efforts to detect and dismantle criminal networks (at paragraph 23), for action to prevent organised crime at EU level (at paragraphs 41 and 42) and for a European Police Chiefs Operational Taskforce to exchange, in cooperation with Europol, experience, best practices and information on current trends in cross-border crime and contribute to the planning of operative actions (at paragraph 44). However, whilst a response such as this is largely beyond the remit of local domestic forces, the clear indication is that, through Europol, the EU will seek national co-operation to deal with aspects of organised crime impacting on the EU.

In this respect of course, such criminality also impacts on each individual EU Member State because it is quite inconceivable that criminals in a position to exploit large-scale and profit-focused criminal opportunities across the EU are not already honing their skills with criminal enterprises conducted within individual Member States. Accordingly, partnership in the sense of the struggle against organised crime exists at a number of levels and the key to any successful partnership is avoiding duplication. Therefore, this means that, at the intergovernmental level the use of international treaties, supported by appropriate Signatory State domestic legislation, provides the strategic and political impetus needed to achieve this through multilateral co-operative policing agreements. On this basis, the mechanics of international mutual assistance within Europe have, accordingly, been effectively updated and negotiated in the form of a draft EU Convention on Mutual Assistance in Criminal Matters (Nilsson (1998)) for EU Member States to supplement the (now somewhat outdated) provisions of the 1959 European Convention on Mutual Assistance in Criminal Matters (European Treaty Series No. 30) and was opened for ratification to all Council of Europe Member States.

Accordingly, treaties such as these govern co-operation both at the level of individual police force enquiries and at the level of transnational organised crime investigations. This means that because these instruments are written with this breadth of provision, within these international treaty frameworks some enforcement authorities have found it useful, at the tactical level, to have inter-agency Memoranda of Understanding with their opposite numbers in foreign states. For example, there are now several instances of such Memoranda with various French and Dutch authorities and have also sought to enter into another with Belgian authorities, whilst Her Majestys Customs and Excise also have a large number of such memoranda with foreign customs agencies, mostly under the auspices of the 1988 UN Vienna Convention on Drugs (Harfield (1999) at p.31). Therefore, there is also an increasing need for joint-agency operations in the field of transnational organised crime at the operational level that is true both between and within individual EU Member States themselves. Accordingly, it is on this basis that the draft convention envisages international joint investigation teams to which Europol contributes intelligence and expertise, whilst different agencies have different parts to play in each operation depending on the lines of investigative attack to which any given criminal network will be vulnerable (Harfield (2000)).

This means that inadequate partnership working creates vulnerability in enforcement measures that organised crime can exploit, so that Williams for one identifies the essence of partnership working and consequences of it not working properly when recognising that The battle against criminal and trafficking organisations is … a battle of unequals: it is a struggle between a government composed of multiple organisations and constituencies, with diverse objectives and interests, and an organisation with a single purpose or goal-the maximisation of profits… Unfortunately, intelligence about drug trafficking and other transnational crime is often jealously guarded, bureaucratically compartmentalised and fragmented, and disseminated without any clear sense of purpose or direction. (Williams (1998) at p.269) However, generally, within EU Member States it is the national interests that matter rather than those of individual enforcement agencies.

Nevertheless, it is on this basis that crime prevention has effectively evolved from a level at which older constables approaching retirement would spend their days dispensing target-hardening and personal safety advice to anyone who thought to ask for it, to the level of a science in which whole estates are secured by design and comprehensive community safety strategies are required by law. However, whilst it is difficult to equate strategies intended to reduce attacks on people or premises with what might be needed to tackle the very different phenomenon of organised crime (Fiorentini & Peltzman (1995)), there are a number of issues that can be addressed when considering strategies for preventing national and transnational serious and organised crime. These include, co-operation between governments and enforcement agencies; strategic threat assessments; harmonisation of laws and operational practices; weaknesses of individual governments and enforcement agencies; strength of criminal networks; and state-organised criminality. Therefore, to combat criminal organisations and networks that operate globally effectively, enforcement agencies from different nations have to co-operate and work together. This is because no one nation, let alone a single enforcement agency, can hope to combat transnational organised crime single-handedly. Accordingly, this means that, to be able to cooperate effectively nations must have the internal structures to address transnational policing issues and respond to policing initiatives and directives from Europol. However, another important aspect of co-operation between governments and enforcement agencies concerns strategic threat assessments so that the threat posed by organised crime can be determined as enforcement agencies provide operational intelligence for intelligence agencies to analyse that informs the national contribution to the EU threat assessment (Bruggeman (1998) at p.85).

However, as well as co-operation agreements like Europol, the aforementioned agreements to harmonise laws under the Eurojust body must also be recognised – although that does not necessarily mean the writing of a single EU Criminal Code. This is because such harmonisation agreements are actually about achieving common definitions, standards and methodologies between different national enforcement agencies (EU Action Plan at paragraph 6(b)) and could include making it an offence under the laws of each Member State for a person, present in its territory, to participate in a criminal organisation, irrespective of the location in the Union where the organisation is concentrated or is carrying out its criminal activity (EU Action Plan at paragraph 8(1)). Nevertheless, if this were not to be the case, such harmonisation agreements would still be about ensuring such a lacuna does not unnecessarily inhibit policing and judicial agencies co-operation under Europol. This is because it must be appreciated that achieving a consensus on what constitutes crime and how laws can be enforced ensures there will be no national havens for criminals to seek refuge in (G8 Ministerial Communiqu on Combating Transnational Organised Crime, (October 1999) at paragraph 17 and see also Williams (1998) at pp.259 & 263). However, such a view is certainly not radical as it is actually merely an extension of the philosophies that underpin international extradition law (Shaw (1997) at p.482). But the harmonisation of domestic laws gives greater and more varied scope for investigation and prosecution than the establishment of a single EU criminal code and a single EU prosecutor. Therefore, the establishment of Eurojust, a judicial sister-body to Europol, furthers this aim (Tampere Conclusions at paragraph 46) in relation to fraud against the EU itself in particular (House of Lords, 1999).

Nevertheless, the fall of communism in Europe has been succeeded by a battle for control of the post-communist economies between the fledgling democracies and organised crime (Handelman (1994)). Therefore, a history of corruption and the black market in communist states has provided fertile ground for criminal networks that seek to infiltrate or corrupt government officials and law enforcement agents. Accordingly, this means that only by strengthening individual governments and enforcement agencies will their vulnerability to such attacks be reduced. On this basis applicant states seeking membership of the EU must reach accession criteria in law enforcement and judicial matters as part of the drive to prevent organised crime finding new avenues of access to criminal opportunities in the EU and assist developing nations to achieve the desired standards (Harfield (2000)).

Therefore, it must be understood that strength of any given criminal organisation is derived from factors including, access to illicit and legal markets to generate profit; personnel with varying skills or access to public authorities; capability to counter enforcement agencies either through evasion or violence; a context within which laws are weakly enforced; and co-operation with other criminal groups. This is because factors such as these, by definition, serve as points of vulnerability to attack organised crime and any one single agency will have varying capability to impact on these different vulnerabilities. However, illicit markets are generated within the context of government regulation so that this means to cite one very straightforward example, drugs are smuggled because they are illegal. Therefore, whilst an investigative agency cannot determine government regulatory policy, investigations have the potential to generate intelligence about the manner in which criminal markets are shared between rival groups (Polo (1995)). Of course this could also influence decision-making when drafting regulations to control activities and powers of enforcement, whilst intelligence generated from investigations can also contribute to a better understanding of how profits from crime are then laundered through legitimate market places. On this basis, this means that identifying the links between illicit profits and legal markets will provide a better means to regulate them, thus reducing opportunities for laundering (see Celentani et al (1995)).

Clearly, regulatory regimes and controlled access to legal markets can be circumvented through corrupt public officials, but various integrity measures can be taken to minimise the risk of placing individuals in a position that makes them vulnerable to corruption. However, intelligence arising from investigations can and does highlight issues of corruption because it is at this level that local forces potentially have a role to play. Nevertheless, community safety strategies could be a vehicle by which issues of town hall corruption can be addressed because rigorous enforcement of laws prevents offending and can also influence social attitudes, as the significant reduction in Christmas drink-driving arrests and convictions over the last decade demonstrates this. But the opposite is also true because a policy of cautioning people for personal possession of illicit drugs, or even of ignoring such an offence, can lead to the wider public perception such criminal behaviour is, if not actually condoned, at least considered by the authorities not to present a significant threat. However, such a perception misses the point that apparently minor offences are the culmination of a chain of organised criminality focusing on production, importation and distribution networks sustained by crime and protected by violence (Harfield (2000)). Where regulations and laws are not strictly enforced, then opportunities present themselves for organised crime groups either to engage in primary criminality, or to launder illicit profits, without challenge. Therefore, this means that using investigations to divide and rule criminal groups prevents criminal co-operation through the use of informants, and by judicial bodies through sentences that recognise co-operation with law enforcement.

In conclusion, in looking to critically examine the role, and internal and external governance of two multilateral police co-operation arrangements, it is clear that, however complex, whatever the results of any political initiatives within the EU and other European states in relation to the closer integration of political and economic institutions, there is an increasing integration and co-operation amongst the higher echelon of criminals throughout the Union. Therefore, this means that whether the EU continues to expand its membership, refine its constitution, harmonise the laws of Member States or even disintegrates, law enforcement throughout the Union will still have to handle the significant threat posed to national and global infrastructures by the free market of organised crime (see Fiorentini & Peltzman (1995) and Williams (1998) at p.265-8). However, whilst this market will take any opportunities offered to it, it will also flourish in the absence of such a supranational entity in dealing with organised crime in particular.

Nevertheless, the EU must rely on its Member States because it has no enforcement agency of its own so that this means Europol and Eurojust are intended to improve and facilitate co-operation between Member States for the common good rather than assume enforcement responsibility through the EU. Therefore, issues of sovereignty are closely linked to law enforcement and with more direction from Europe in the fight against organised crime come issues of accountability (McLaughlin (1992) and Walker (1993)). However, the European Court of Justice cannot really intervene in the actions of Member State domestic enforcement agencies under Article 35(5) of the ToA. This means some aspects of proactive investigation and partnership working will remain intergovernmental but commentators have argued moving treaty-based co-operative measures, such as Europol and Eurojust, to the First Pillar of EU business would render these structures more accountable to judicial control (Hall, 1999) and is, therefore, a fundamental positive for the whole Union


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