Jaarlijkse conferentie International Criminal Law Netwerk
Opening speech by the Minister of Justice, Ernst Hirsch Ballin, at the ICLN 7th Annual Conference “The Future of European Criminal Law - Concrete perspectives with or without the Lisbon Treaty”, World Forum, The Hague, 12 December 2008.
Ladies and gentlemen,
The next phase in Europe’s future is knocking on the door: today, the European Council discusses the future of the Lisbon Treaty and from 2010 a new multiannual policy programme (the Stockholm Programme) will determine the EU’s course in the field of Justice and Home Affairs.
Both will influence the future of European criminal law: the Lisbon Treaty will establish new rules of the game (with qualified majority voting [QMV] in the Council and co-decision of the European Parliament as the main rule); the Stockholm Programme will set new goals.
As an EU citizen, scholar and Minister of Justice, I am lucky to be able to have my say, at a number of levels, when it comes to the future architecture of JHA cooperation. And I am pleased to have the opportunity today to share with you some thoughts on the future of European criminal law.
Although criminal law is traditionally linked with the core of a national legal order and national identity, the future of criminal law will be more and more European: just as the free movement of goods in the Union can only be complete by harmonisation of national legislation and mutual recognition of one another’s legislation, the fully free movement of persons in the Area of Freedom, Security and Justice requires a certain degree of harmonisation of legislation, mutual recognition of criminal law of Member States, the encouragement of mutual trust between Member States (mutual recognition of judicial and extrajudicial decisions) and operational cooperation between police and judicial authorities in the area of prevention and detection of criminal acts.
Aside from a fully free movement of persons, strengthening the criminal law and police cooperation on European level will be necessary given the development of international organised crime.
Ladies and gentlemen,
The subtitle to this conference is “Concrete perspectives with or without the Lisbon Treaty”. I hope and assume that it will be a future of European criminal law with the Lisbon Treaty, i.e. with qualified majority voting [QMV] in the Council and co-decision of the European Parliament as the main decision making procedure, with the European Commission as the principal initiator of legislation, and with the European Court of Justice with comprehensive powers in the field of criminal law.
And should the Lisbon Treaty, sadly, not come into force, many things will change in the area of European criminal law. Changes that, as a consequence of two decisions of the European Court of Justice with regard to environmental protection (2005) and ship source pollution (2007), will come into being through First Pillar instruments, with co-decision of the European Parliament and qualified majority voting [QMV] in the Council.
So, the Lisbon Treaty (with or without) is not the most decisive element of the development of European criminal law. Criminal law will be more and more European in the near future, one way or the other.
Ladies and gentlemen,
As a lawyer, I have to deal with rules and procedures. The new Lisbon rules will provide opportunities for the prevention, investigation and prosecution of crime and the enforcement of judicial sentences. The treaty, however, is not only about rules and procedures. First and foremost, it should be about the goals we -with the help of those rules and procedures- are striving for. Goals that will be included in the Stockholm Programme, a new multiannual JHA policy programme.
In setting future goals, as far as I am concerned, four elements should point the way: consolidation, practical cooperation, trust and integrated approach. What does this mean in the area of criminal law?
1. Consolidation
Our starting point should be consolidation: the optimal implementation of existing instruments. We should not be too quick to look for solutions in new institutions, organisations or structures, in new policy and new legislation. If we are to achieve better cross-border cooperation we need to make better use of the instruments we have and, if necessary, improve the working practices of the organisations we already have.
In this respect I would like to mention the principle of availability. This important principle is formulated in the Hague Programme. Throughout the EU a law enforcement authority in one Member State may obtain information required in the performance of its duties from another Member State and the law enforcement authority in the other Member State makes such information available with due regard to the interest of the pending investigations in that Member State.
Various systems have meanwhile been developed in the EU to realise this, e.g. the Prüm and the Swedish Framework Decision. And prior to the Hague Programme, various systems were selected to facilitate the exchange of data and access to such date, such as Eurodac and SIS. In addition, many kinds of information are still exchanged in the traditional way, i.e. on the basis of the question-answer system. Further steps have to be taken: further detailing the principle of availability (availability+) and seeing to one single sound follow-up trajectory is needed.
2. Practical cooperation
I support the growing emphasis within the field of JHA on practical cooperation. This emphasis finds expression in the principle of convergence that was introduced by the French Presidency, following the principle of mutual recognition laid down in the Tampere Programme and the principle of availability that characterised the Hague Programme.
An example of an impractical procedure in my opinion is the combination of the European Evidence Warrant and mutual? assistance. By means of the European Evidence Warrant existing documented evidence may be obtained through mutual recognition. However, other evidence such as evidence that still has to be gathered by means of coercion, for example by means of a telephone tap, still has to be arranged by following the traditional request for mutual assistance. This is a rather laborious procedure for the operational legal practice. There should be one single regimen for obtaining evidence. I believe that obtaining all evidence should be regulated through mutual recognition as agreed in the Action Plan of the Hague Programme.
I would also like to mention the OCTA (Organised Crime Threat Assessment), which serves as the basis for EU priority-setting in countering organised crime. To date there has been no follow-up regarding a concrete approach to prioritised serious cross-border crime. By making choices together, standing by them and implementing them at national and EU level, with all the capacity and resources at our disposal, we can tackle these types of crime in real life rather than on paper. This requires more direction and coordination. This implies a stronger role both for Europol and Eurojust, also working together, and in future perhaps for the European Public Prosecution. In that regard joint investigation teams must be used more often.
3. Trust
Aside from practical cooperation, trust is another key element of any effective and enduring JHA policy. Successful policy depends on trust at different levels, of European citizens, judicial and police authorities, and of national governments and parliaments. And equally, effective European cooperation will help strengthen trust. In order to move forward in Europe, and thereby move forward with Europe, there must be a common foundation of trust. Building and maintaining that foundation requires effort. That trust should be continually reciprocated.
Trust in law enforcement within the Union and the trust that exists between the authorities responsible for it, both require a common European legal culture. This means that member states must share common yardsticks and quality standards. After all, the quality and credibility of a country’s legal system depends partly on the quality and credibility of other legal systems within the EU. For citizens, legal uniformity and transparency of legal judgments are basic conditions for trust in one another’s legal order and administration of justice. And in the legal order of the Community as a whole.
We can only speak of shared values when quality standards are sufficiently high throughout the EU. If, for example, a Member State is not capable of protecting fundamental rights as laid down in the European Convention on Human Rights and the EU’s Charter of Fundamental Rights, or is unable to effectively investigate or prosecute international cases, the trust between member states, authorities and citizens inevitably erodes.
Trust requires some harmonisation of procedural law, procedures and processes, to ensure that one enforcement authority knows that the other enforcement authority has observed certain procedures in obtaining information and evidence thereby inspiring trust in the results.
The experience with the European Arrest Warrant, for example, has shown that we need measures that will increase trust among judges. When it comes to the extradition procedure, judges must be sure that the rights of the person concerned are guaranteed in the country to which he or she is being handed over. Furthermore, I believe that the uniform practice of forensic science, using common processes and common criteria for court experts, for example, would increase trust in, and therefore the impact of, the work and results to which forensic experts contribute.
It is expected that the European Commission will publish a Communication about mutual recognition in criminal cases. I support the trend that mutual recognition is transferred to the area of criminal cooperation, meaning, among other things, that the complete gathering of evidence falls under that regime.
With that, I believe it is most important that sufficient attention be paid to trust reinforcing measures. Such measures are necessary in order to step up cooperation in this area.
Another way to contribute to criminal cooperation is to improve and maintain the high standards of the quality of national rules of law. Monitoring could contribute to that. In that respect, any obstacles of national judicial systems to the good functioning of a common area of Freedom, Security and Justice should be listed and should be discussed.
Trust in one another’s rule of law can also be increased by sharing knowledge and insight, and simply by meeting one another. An element that is also essential to strengthening practical cooperation in general. Increasing knowledge and insight are important building blocks for the future development of the EU. By systematically sharing the key principles of our legal systems and at the same time being open to ideas from beyond our own borders, we will also increase transparency and build trust. Whenever we meet one another, we automatically share knowledge. An exchange of best practices, about different legal systems, for example, can lead to more effective cooperation between states and better results. Trust always grows when people know each other, when they are familiar with each other's working methods and are willing to share ideas. That is why it is important to invest in meetings between law enforcement authorities – by holding theme-oriented discussions or joint training initiatives, for example. We also need to invest in direct communication between European law enforcement authorities. Starting a knowledge network is one way of achieving this. There could be a role here for the ‘Justice Forum’, a theme-based platform set up by the Commission, where practitioners from Member States meet to discuss implementation issues and possible improvements.
4. Integrated approach
This requires Member States to seek maximum cohesion between policy issues and between the internal and external dimensions of particular issues. Capacity building, for example, can play an important role in countering organised crime. Problems which may result from immigration and integration policy can have a major impact on delinquency, street crime and radicalisation – after all, inadequate integration leads to social tensions. Another clear example is our approach to human trafficking, which must be considered in the context not only of immigration policy and development cooperation, but also of human rights and the victims’ situation.
Coordination of the international aspects of policy is the other key element of an integrated approach. The world, after all, does not stop at the European borders. Cooperation with other countries is a vital part of countering crime, but must be effective not only in the context of our shared security interests, but also that of human rights protection.
Ladies and gentlemen,
Today’s conference is composed of four break-out sessions in which you will discuss key elements of the future of European criminal law. Such as:
the principle of availability;
the Passerelle Option of the Lisbon Treaty;
trust;
and the evolution of Eurojust and the future establishment of the European Public Prosecutor.
I hope that my opening remarks have provided you inspiration to fully participate in these discussions.
Thank you.