Tom Schalken and Maarten Pronk1
On Joint Investigation Teams,
Europol and Supervision of Their
Joint Actions2
1. INTRODUCTION
Two particular forms of international police cooperation – the activities of joint investigation
teams, and the participation of Europol in those activities – occupy a central
place in this paper. Developments in relation to joint teams currently act as a sort of
centrifuge of international investigation. There is no doubt that cooperation reveals
what still remains to be done. Through the joint police teams, the legal systems of
the participating countries will be confronted with their own differences. The communality
trumpeted in this cooperation suggests an organisational and normative
communality which as yet does not exist. It is true that the new European Union
convention on mutual legal assistance has created an important legal framework
which also helps to further cooperation in the field of criminal law in the operational
field, but this is by no means an answer to all the problems which exist.
The rivalry between the various legal systems may seriously hamper the effectiveness
of European police cooperation in practice. This is why it is vitally important
that controversial points which arise in the course of joint investigations are removed,
as far as is possible. This means above all that further research is necessary into the
practical problems in the organisation of joint investigation, into the normative (police
and prosecution) principles which can be applied in joint operations and into the way
in which supervision – both democratic and judicial – of these operations is organ-
ised.
Such research entails two aspects: one in terms of content (can common standards
of investigation be found?) and an institutional aspect (how can practical problems
in the organisation of cooperation be solved, and how should supervision of this
cooperation be constructed?). Before these two aspects are dealt with, there first follows
European Journal of Crime, Criminal Law and Criminal Justice, Vol. 10/1, 70–82, 2002.
70 © Kluwer Law International. Printed in the Netherlands.
1. Tom Schalken is Professor of Criminal Law and the Law of Criminal Procedure at the Free University
Amsterdam. Maarten Pronk is Assistant Research Fellow at the same university. Both authors are
affiliated to the Research School Public Security.
2. This article is a modified version of a written paper presented at the conference on Europol, organised
by the Netherlands Parliament held on 7 and 8 June 2001, in The Hague and specially intended
for members of the European Parliament.
THES
TH
a description of the character of joint investigation teams and the position of Europol
in the participation of these teams. The conclusion is that the development of a procedural
common denominator (cooperation on the basis of uniform principles for the
purposes of investigation) has institutional consequences that will barely be affected
by the pillarised structure of the European Union.
2. JOINT INVESTIGATION TEAMS
After the Plan of Action for combating organised crime3
had prompted the setting up
of ‘joint teams’, general rules were incorporated into the Treaty of Amsterdam (1997)
which constitute the basis for joint operations in joint investigation teams in which
police, customs and other specialised services of the member states involved may
participate (Article 30 Treaty on European Union). The vigorous fight against crime
– initially trans-national organised crime, in particular relating to terrorism, trafficking
in drugs and people – was above all, placed within the perspective of the
creation of a ‘place of freedom, security and justice’ within the European Union.4
The new European Union convention on mutual legal assistance5
further elaborates
the legal basis for joint police cooperation.6
The intention of the treaty is to provide
a specific framework for setting up and putting in place joint investigation teams. Article
13 enshrines the necessary conditions for this.
Firstly, there should be an agreement between the competent authorities of the
member states concerned (the number of which is not restricted). For the functioning
of the team, however, certain limitations do apply: the team is set up for a specific
aim (in which field of criminal activity and in which country?) and is set up for a
specific duration (which moreover may be extended by mutual agreement). A variety
of people may participate in the team: generally investigating officers, but also judges
and members of the public prosecution service; also, people who do not represent
their authorities but who are attached to other EU institutions (Europol, OLAF,
Eurojust), even people who originate from countries outside the European Union or
who belong to other international organisations (for example, Interpol).
The team is stationed in the place where it has been set up. This will be the country
where, it is anticipated, the greater part of the investigation will be carried out. The
team is led by an official who comes from the country where the team is stationed.
If the team is active in more than one member country, the leadership of the team
may alternate. The team is required to respect the law of the country where it is
operating.
The seconded members (that is to say members who are operating outside their
On Joint Investigation Teams, Europol and Supervision of Their Joint Actions
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3. Decree of the Council d.d. 28 April 1997, Pb. 1997, C 251/01.
4. Outside the EU level the necessary experience with joint operations has already been acquired,
particularly in the various regions (see F.J.L.M. Claus and M.G. Faure, Juridische beletselen voor politiële
beleidssamenwerking tussen Nederland en België (Maastricht 1995)). The EU investigation
teams will doubtlessly be able to benefit from these experiences.
5. Convention on Mutual Assistance in Criminal Matters (2000).
6. Pb 2000, C 197. The explanation of the treaty is published in Pb. 2000, C 379/17.
outdated article
2000
A
B
1997
own country) may be present at investigative activities in another country, unless the
team leader deems this to be undesirable for particular (operational) reasons. However,
seconded members can – on the instruction of the team leader and after approval of
the seconded country and the seconding country – be charged with carrying out
investigative activities in the other country.
The permission required for this – which may be general in nature or may be limited
to specific cases – may be set forth in the setting up agreement or may be given at a
later date. What is exceptional, and of great importance in practice, is the clause that
the seconded member is authorised – partly on the basis of intelligence that is available
in his country – to request his/her own national authorities to perform acts which
are deemed necessary by the team. In that case, the country where the team is active
does not have to make a separate request for legal assistance. If, in general, legal
assistance is necessary from a country that was not involved in setting up the team
or from a country outside the European Union, the request for legal assistance is
made by the country in which the team is acting.
Finally, the European Union convention on mutual legal assistance regulates the
conditions under which data which has been acquired by a member or a seconded
member in a lawful way may be used, if this intelligence were not otherwise available
to the competent authorities of the member states concerned. The explanation
of the treaty expresses the desirability that the member states should consult with
one another in situations where witness statements are used for a purpose other than
that for which the team was set up, and that permission should be asked of these
witnesses in such a case.
3. CONTRIBUTION OF EUROPOL TO JOINT INVESTIGATION TEAMS
From the moment that regular police cooperation7
in terms of joint investigation
teams was discussed at EU level, the intention was for Europol to play a prominent
role in the process. Thus the 1997 Plan of Action8
clearly set out Europol’s contribution.
In this plan, the Council argued that Europol should acquire ‘functional’ powers
to work together with national authorities. With this cooperation in mind, Europol must,
according to the political argument, be able to provide facilities and support to the
preparation, coordination and execution of specific investigations by the authorised
services of the member states, including operational activities by joint teams which
include representatives of Europol in a supporting capacity. Furthermore, Europol must
be able to request the authorised services of the member states to investigate in specific
cases and to develop specific expertise for the benefit of investigation into organised
crime (guideline 10).
The mandate described here is expressly set forth in the Treaty of Amsterdam. In
accordance with this treaty, Europol should be enabled ‘to facilitate and support
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7. In the field of customs, cooperation between customs officials had been regulated earlier; cf. for
example, the BASS Treaty of 1969, although a clear basis for joint teams has only recently been
incorporated into the Naples II Treaty (1997).
8. Decree of the Council d.d. 28 April 1997, Pb. 1997, C 251/01.
C
D
THES
preparation, and foster coordination and execution of specific investigation activities
by the competent authorities of the member states, including operations by joint teams
which include representatives of Europol in a supporting role’ (Article 30 Treaty on
European Union). In the subsequent Plan of Action drawn up in Vienna (19989
) in
elaboration of the Treaty of Amsterdam, measures were announced to widen Europol’s
powers (to now also include counterfeiting, in connection with the introduction of
the Euro10
) and to concentrate its activities on operational cooperation, in this sense
too – such as was already derived from the 1997 Plan of Action – that Europol may
request the competent authorities of the member states to carry out an investigation
into specific matters and that they – in a supporting capacity – may also act within
the framework of operational actions by joint teams (recommendation 43).
In this connection it was decided that Europol’s powers would not remain limited
to the tasks as already set out in the Europol Treaty (199511
) which only pertained to
the gathering, sharing and propagating of intelligence. Thus Europol – whose creation
by the member states was initially greeted with a degree of mistrust – was delivered
from its operational and institutional isolation.12
Europol became more than an ‘intelligence
broker’.13
Through later decisions of the Council, including that of Tampere
(1999), the position of Europol in these joint teams was yet more strongly confirmed:
it should be empowered not only to initiate investigations in the member states, but
also to initiate the setting up of joint teams (recommendation 45).
Meanwhile the task force of European police chiefs created by the Tampere decision
(recommendation 44) was busy implementing what the Council still considered a matter
of high priority. A number of implementation decrees have already been produced.
On 28 September 2000, the Council decreed that the member states should carefully
study any request from Europol to initiate an investigation, that they should let Europol
know what the results have been of any investigation which has been set up and that,
if no investigation is underway, they should inform Europol, explaining why not.14
In its recommendation of 30 November 2000, the Council further considered the
question of what Europol’s contribution should entail in concrete terms (such as
assistance in coordination and advice on technical questions and crime analysis).15
This
was an opportunity to further broaden Europol’s field of investigation, in particular
with respect to money laundering, regardless of the original offence.16
The Treaty of
Nice (2000) did not include any further provisions with respect to joint teams and
Europol’s contribution to them.
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European Journal of Crime,
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9. Decree of the Council d.d. 3 December 1998, Pb. 1999, C 19/01.
10. On the basis of the EU Framework Decree of 29 May 2000 (Pb. 2000, L 140) the legislation against
counterfeiting was tightened up (see, summarised, for the Netherlands: Nieuwsbrief Strafrecht (2001)/6,
pp. 192–194).
11. Pb. 1995, C 316/1.
12. C.J.C.E. Fijnaut, ‘Europol en Eurojust’, Justitiële verkenningen (2001)-2, pp. 11–24, at p. 13.
13. B. Swart, ‘Politie en justitie in de Europees Unie’, Ars Aequi (2001)-5, pp. 109–118, at p. 112.
14. Pb. 2000, C 298/8.
15. Pb. 2000, C 357.
16. Pb. 2000, C 358.
4. WHAT ARE ‘OPERATIONAL’ POWERS?
Various EU documents still speak about Europol’s power to take part in ‘operational’
actions. But what does this actually mean? The Vienna Plan of Action (1998) contained
a reminder that one of the most important priorities deriving from the Treaty of
Amsterdam is to establish ‘the nature and scope of Europol’s operational powers’
(recommendation 43). In terms of the consequences of this recommendation, first
thought was given to the power to take the initiative in setting up an investigation or
either to request member states or to act within the framework of operational actions
by joint teams.
This last power in particular – participation in joint investigation teams – might give
the impression that Europol’s operational powers may also be interpreted in the
executive sense, viz. that Europol should have independent (autonomous) competence,
in carrying out operational (concrete) activities, to be able to apply prosecution
or other police powers itself (such as taking investigation measures or exercising
coercive measures in respect of persons). However, this is not the case. The fact the
Europol can play an independent (supportive) role in operations does not yet mean
that it can also have executive powers in reality.
The standpoint of the Dutch government, too, amounts to saying that the participation
of Europol in joint teams – which moreover can only be settled via a change
in the Europol Treaty – can only take place at the level of support and should not
therefore be viewed in an executive sense.17
Moreover, support is provided in situ by
Europol officials under the supervision of the competent national authority.18
This point of view similarly has currency in Europol circles. This entails direct
consequences for the supervision of Europol. Europol’s director, Jürgen Storbeck,
thus defended the view that there is only a place for judicial control in the European
context if his service is able to independently instigate investigations.19
Europol has
not had the power so far – be it by approaching individuals, be it by applying means
of coercion – to gather intelligence of its own accord. It does avail itself of public
sources (such as the Internet) to supplement its own intelligence.
Even without an executive role accruing to Europol investigation teams in reality,
its influence on setting up and launching these teams may be considerable. They can,
after all, jump into the gap left by absent cooperation by taking initiatives and by
launching investigations to which Europol – possibly at variance with national insights
– attaches priority. This would seem to be all the more important when national
police forces – who by nature tend to be protective of their intelligence20
– are not overOn
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17. Annotated agenda of the session of the Council d.d. 17 October 2000, States General 2000–2001, 23
490 etc., nos. 6a and 166, p. 3. See also the explanatory memorandum to the Dutch Act Sanctioning
the Europol Treaty: Europol is a facilitating unit, not an independent entity which institutes autonomous
investigations with its own people, resources and support (Lower House 1996–1997, 25 339, no. 3,
p. 4).
18. According to the Dutch Act Sanctioning the Treaty of Amsterdam, Lower House 1997–1998, 25
922 (R 1613), no. 3, p. 27.
19. Interview in Staatscourant (official gazette) on 5 July 2000, p. 2.
20. On problems at the level of information exchange, see also M. den Boer, ‘Internationale politiesamenwerking’,
in C.J.C.E. Fijnaut, E.R. Muller en U. Rosenthasl, eds., Police. Studies over haar
werking en organisatie (Alphen aan den Rijn 1999) pp. 577–617.
thus:
operational
capabilities
So nevertheless
still considerable
THES
enthusiastic about accepting the services of Europol. The member states will not – at
the political level – be easily able to ignore a request from Europol, especially if an
earlier request has not been granted. On the basis of the Treaty of Amsterdam, it is
even possible for the European Commission to request the member states to provide
a justification.21
Europol can also exercise influence on the operational execution of a joint action.
By combining and coordinating the knowledge, information, methodology and technology
from various countries Europol can, certainly from its central intelligence
position and its experience with reducing cultural differences, give direction to joint
actions, for example, in the prior consultations about the composition of the team
and the location where the team is to be stationed. This actual influence on the setting
up of the investigation will be broadened yet further when Europol also contributes
– already by making available organisational and human resource facilities – to the
financing of team investigation.
Due to the – mainly in theory22
– increasing influence of Europol on operational
activities, it is important to intensify supervision, both judicial and democratic, of
this European police force. The politicians could make a strong case for amending
the Europol Treaty, so that the participation of Europol in operational and joint activities
could be specified in greater detail. The difference – in the field of immunity –
should also be stressed between members of a joint team (who will have to operate
a certain level of openness in respect of the methods of investigation employed) and
the participating Europol officials (who can shelter behind their obligation to secrecy23
).
This could seriously complicate judicial control in domestic criminal procedure.
Against this background, it would be desirable if within the European Union the rule
were to apply, as it currently applies in the Netherlands, that the deployment of
foreign investigation officials in the practice of special powers of investigation were
made dependent on their willingness to make a witness statement later in the Dutch
criminal process.24
In any event, on that point ad hoc arrangements could be made in
the agreement when a joint team is being set up, which would also bind the Europol
officials.
At the political level, agreements could be made on the further content of the setup
agreement, for instance, on the method of intelligence gathering in the participating
countries and the use of evidence gathered within the team.25
In this connection,
attention should also be paid to the question of what powers the team can exercise independently.
It must be assumed that the intention is not to require a separate request
for mutual legal assistance for the exercise of each power or for each juristic act. In
On Joint Investigation Teams, Europol and Supervision of Their Joint Actions
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21. J. Koers, Nederland als verzoekende staat bij de wederzijdse rechtshulp in strafzaken. Achtergronden,
grenzen en mogelijkheden (Nijmegen 2001) p. 226.
22. The influence of Europol should not be, yet again, overestimated. In practice it still requires plenty
of effort to winkle out information from the member countries, even via the national Europol units.
Sometimes Europol finds itself having to approach experts outside the units within the police forces.
23. See Articles 31 and 32 of the Europol Treaty, further elaborated in the protocol concerning the
privileges and immunities of Europol (Pb. 1997, C 221)
24. Royal decree of 15 December 1999, Stb. 1999, 549.
25. Such arrangements, which at the official level are already prepared, determine the efficiency of a
joint team (J. Koers, op. cit., p. 428).
any event, each country will have to make its own regulations with respect to the
procedural status of official acts performed by foreign officials in their own countries.26
5. COMMON STANDARDS FOR INVESTIGATION?
An important question in connection with the functioning of joint teams (and the
supervision thereof) concerns the material content of the standards which govern
them in the course of their criminal investigations. These standards can be partly
found in international treaties of mutual legal assistance. For instance, the Schengen
Agreement – since 1999, the entire Schengen acquis has been in force for virtually
all EU countries by virtue of its incorporation into the treaty of Amsterdam – enshrines
rules pertaining to the (voluntary) provision of intelligence by the police, (transnational)
observation and pursuit. The new European treaty on mutual legal assistance
regulates some specific forms of trans-national powers: the interrogation of suspects,
witnesses and experts (by video- or tele-conferencing; Articles 10 and 11), controlled
delivery (Article 12), infiltration (Article 14) and intercepting telecommunications
(Articles 17–21).
The current treaties on mutual legal assistance are an important step on the road
to the harmonisation of international police powers, but they do not cover everything.
This means that several matters – deals with criminals, for instance – remain
unstandardised at the European level, such that police cooperation will still have to
fall back on the domestic legal system, as long as important differences remain between
the countries in the standards of special methods of investigation.27
Nonetheless, the European Convention on Human Rights (ECHR) – shortly to be
supplemented by the new EU Charter of Fundamental Rights28
– may also be of considerable
importance for European cooperation in criminal investigation. This treaty
may also adopt rules and principles – whether it be for the development of new standards,
or whether it be for supplementing existing ones – which may further standardise
international policing practice, for example, in respect of the application of means of
coercion and methods of investigation,29
but also in the phase which precedes a criminal
investigation, the exploratory or proactive phase.30
Although the ECHR, it is true,
does not enshrine any general rules on the furnishing of proof in criminal cases –
according to firm jurisprudence of the European Court of Human Rights, the admissibility
of evidence and the appreciation of evidence remains within the competence
of the national courts – this does not alter the fact that in the decisions of the Court
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26. J. Koers, op. cit., p. 373.
27. P.J.P. Tak, red, Heimelijke opsporing in de Europees Unie (Antwerpen-Groningen 2000) p. 815.
28. Promulgated at the European Summit in Nice on 7 December 2000 (Bull, EU 12-2000, p. 189). On
the relation between this charter and the ECHR see B.E.P. Myjer, Bij een vijftigste verjaardag,
inaugural lecture Vrije Universiteit Amsterdam (Nijmegen 2001).
29. C. Joubert and H. Bevers, ‘Schengen Investigated, A Comparative Interpretation of the Schengen
Provisions on International Police Cooperation in the Light of the European Convention on Human
Rights’, dissertation Vrije Universiteit Amsterdam (Amsterdam 1996).
30. C.J.C.E. Fijnaut, De normering van het informatieve onderzoek in constitutioneel perspectief,
preadvies voor de Nederlandse Vereniging voor Rechtsvergelijking (Deventer 1994).
see SUO on police
cooperatoin
BOB's THES
in Strasbourg, practical indications are to be found which the furnishing of proof
must satisfy, and which the police can anticipate in international investigations. Thus
for instance, evidence may not be based solely on an anonymous witness.31
This
means that the police must seek supplementary evidentiary material. The police are
also obliged to add disculpatory evidence to the dossier,32
and the silence of the accused
may under certain circumstances be used in evidence against him33
– the police therefore
need to know under what circumstances.
The ECHR is also important for the non-criminal phase of the investigation. Not
everything from this phase may used for the purposes of the criminal process. If –
by way of an admittedly not very realistic example – Europol, prior to a criminal
suspicion, were to acquire incriminating information by means of observations or
infiltration acting on their own authority in contravention of Article 8 ECHR, this
may have consequences for the subsequent criminal proceedings. The ECHR is, once
again, applicable to the use of evidence for use in a criminal case.34
This does not
yet mean that the national court’s duty to investigate should extend as far as the
outset of the investigation. The intelligence that is used abroad as the start of the
criminal investigation does not have to be unravelled in every detail. Foreign investigation
results may be used for the national criminal process, unless a credible case
can be made that these results were obtained in contravention of the ECHR.35
Analysis of the ECHR and the conventions related to it pertaining to human rights
can provide the practical, necessary evidence that will exercise a unifying effect, and
may provide standards for development which do not yet currently belong to a
commonly accepted system of standards.
6. JUDICIAL SUPERVISION
Police cooperation such as it has developed in international practice emphasises the
importance of effective judicial cooperation. However, cooperation between the national
judicial authorities was late getting off the ground, and it is still unclear in what
direction it is going to develop. In the first instance, the provisions that were created
in the field of justice aimed at remedying practical and judicial problems. That is,
for instance, the purpose of the frequently seconded liaison officers (magistrates)
who fulfil a useful function in the exchange of mutual legal assistance.
Moreover, an important function has been granted for the European judicial network,
consisting of national authorities who bear central responsibility in their country for
international cooperation in the field of the administration of justice. The network based
in Brussels supplies information on the legal systems of the various countries and
dealing with requests for legal assistance.
The Treaty of Amsterdam (in particular Article 31), it is true to say, underlines,
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31. Kostovski, 1989; Van Mechelen, 1997.
32. Edwards, 1992.
33. Murray, 1996.
34. Saunders, 1996.
35. Rodriguez, 2000.
THES:in strijd met
but does not concretise, the importance of further judicial cooperation. Nor was the
relation with the police and supervision of joint criminal investigation further elaborated.
Europol did not receive a mention. However, this did happen at the special
Tampere summit dedicated to the administration of justice. Recommendation 46
announced the setting up of Eurojust. This entity was assigned the objective of – in
cooperation, moreover, with the European judicial network – coordinating and supporting
criminal investigations against highly organised crime, in which Europol’s
analyses in particular could be used.
It would seem to be no simple matter to give teeth to Eurojust, set up at Tampere,
whose relevant agreements were confirmed in the Treaty of Nice. On the basis of
various proposals – submitted by, on the one hand, Portugal, France, Sweden and
Belgium and on the other hand Germany, which submitted a counter-proposal36
– the
Council decided on 28 September 2000, to set up a temporary entity for judicial
cooperation (pro-Eurojust): which would not only have to improve cooperation between
the member states with respect to criminal investigation and prosecution of highly
organised crime, but must also encourage coordination in this area, with particular
reference to the joint investigation teams. In anticipation of the definitive shape of
Eurojust, the aim was not to curtail the tasks of Europol.
In its advice of 30 October 2000,37
the European parliament opted for an improved
connection with the institutions of the Community – thus with the supranationally
organised first pillar – and saw Eurojust principally as a precursor of a European public
prosecution service. This was only to be expected, since on the initiative of the
European parliament within the framework of the Corpus Juris project38
ideas about
a supranational prosecution authority to combat fraud within the EU were elaborated.
The European Commission – which supports the idea of a European public prosecution
service – reminded us of this in its communication of 22 November 2000,39
but provisionally opted for strengthening the position of Eurojust, stating that Eurojust
has to be more than a centre of expertise providing intelligence. Eurojust – upgraded
to an organ of the Union – will have to be actively involved as an intermediary between
national prosecution authorities, with concrete criminal cases. In this connection,
Eurojust should work closely and efficiently with Europol. The Commission emphasises
that, in its view, Eurojust can indeed be seen as Europol’s judicial counterpart,
but not as the institution that exercises ‘judicial supervision’ on Europol.
In its decree of 14 December 200040
the Council – notwithstanding the viewpoints
of both parliament and Commission – held to its decision to set up a provisional
entity for judicial cooperation. However, by the end of 2001, the setting up of Eurojust
should be a reality. In the course of 2001, it should therefore become clear in which
direction judicial cooperation will continue to develop. And above all, how judicial
supervision over Europol is organised.
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36. Cf. C.J.C.E. Fijnaut, ‘Europol en Eurojust’, Justitiële verkenningen (2001)-2, pp. 17–21.
37. Bull, EU 11-2000.
38. M. Delmas-Marty and J.A.E. Vervaele, eds., The implementation of the Corpus Iuris in the Member
States, Volume I (Antwerpen-Groningen-Oxford 2000).
39. Announcement of 22 November 2000, COM (2000) 746.
40. Pb. 2000, L 324.
here again, it is
clear that the
article is outdated
One of the most important questions in this connection which will have to be
addressed concerns its relation to Europol. Both institutions, after all, possess the
same powers, viz. to get investigations in the member states off the ground. This
requires rules about harmonisation. On the one hand, Eurojust is dependent on the
intelligence that Europol possesses (analyses of crime), while on the other hand Eurojust
– which does not have its own (supranational) powers of prosecution – may support
and thereby strengthen the initiatives in the member states concerned through the
national public prosecution authorities.41
In addition to developments relating to Eurojust, there has been a development in
the direction of a European public prosecution service which should possess independent
powers of prosecution. The European Council remains to be convinced of
this idea. It seems to be somewhat insensitive to regulate Commission judicial supervision
at the supranational level, that is to say in the first pillar, at the instigation of
the European parliament and the European Commission. The idea of a European public
prosecution service was not raised at the Nice summit.
Nonetheless, within the first pillar a truly European investigation service is already
active, namely OLAF, the agency set up to combat EU fraud. The efforts to organise
judicial supervision over the fight against fraud – a European prosecutor will be attached
to OLAF – may be considered as a step towards further cooperation within the first
pillar. Within the Dutch public prosecution service OLAF is even seen as a precursor
of a European public prosecution service.42
Although several problems remain to be
overcome – the position of the public prosecution service is arranged differently in
the various countries in the areas of monopoly of prosecution, expediency of prosecution
and political accountability – the Netherlands is setting a course for the creation
of a European public prosecution service. The growing influence of the police, the
imminent harmonisation in the area of dealing centrally with criminal offences and
the inter-wovenness of international organised crime are simply compelling reasons for
a uniform approach to the public prosecution service.
7. DEMOCRATIC SUPERVISION
Because, since the Treaty of Maastricht, international policing and judicial cooperation
has been subsumed under the third pillar and is therefore regulated at the
inter-governmental level, supervision of the police, particularly where it concerns
joint investigation and Europol’s participation therein, has not been well regulated
thus far. Whereas control over national police forces is in accordance with each
country’s legal system, Europol, when it involves concrete joint actions, especially
on an ad hoc basis, is controlled by fifteen different parliaments.
In fact, the European parliament is offside. It has the right to read Europol’s annual
report, and is only consulted on an intended amendment to the Europol treaty. Effective
control is exercised within the board of governors that was appointed over Europol,
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41. Interview met G. Strijards en M. van Erve, ‘Een autonome ontwikkeling, zoals het stijgen van de
zeespiegel’, Opportuun (2001) pp. 3–5.
42. Interview met G. Strijards en M. van Erve, loc. cit.
That is: Europol and Eurojust
THES
zie bijvoorbeeld
operatie 'Koolvis'
but this body is only accountable to the Council of Ministers. Even the role of the
European Court of Justice in Luxembourg – which could play a consistent role in
the interpretation of the Europol treaty – is marginalised, because the jurisdiction of
the Court is not recognised by every country, and even that recognition is limited.
The solution would appear to be simple: the European parliament should acquire
greater influence with respect to Europol. The problem is not only that Europol belongs
to the third pillar, but also that there is no unanimity within the European parliament
on the way in which Europol should continue to function in the future.
During the Inter-parliamentary Conference, held on 7 and 8 June 2001, in The Hague,
an important step was taken to combine the powers within the European parliament
in relation to Europol. At this conference, a resolution was adopted to set up
PARLOPOL, a network of representatives from the European parliament and national
parliaments which will promote European cooperation in the fields of policing and
justice.
The same resolution requested the Belgian chairmanship to call a new meeting of
PARLOPOL in the second half of 2001. Finally, there remain a number of matters to
be worked out. How can control of Europol by the European parliament be strengthened?
What is the relationship between the European parliament and the national
parliaments in terms of exchanging information in relation to Europol. For the time
being, the only effective parliamentary control that can be exercised is through the
national minister concerned.
8. CONCLUSION
It would therefore appear to be inevitable. Real and effective supervision of the judiciary
over international investigation and a real democratic control over the European
functions of the police and the judiciary can only be introduced via the first pillar. Only
in this way can the judiciary – unified in a European public prosecution service, assisted
by a seriously well-equipped Eurojust as an organ of the Union – exercise real authority
in respect of the police. Only in this way can the European parliament address the
European institutions. And only in this way can both a European police force and
also a European judiciary be democratically embedded.
The fact that Europol and the other various forms of international police cooperation
continue to formally belong to the third pillar should not be an obstacle to
organising supervision and control over trans-national and joint investigation within
the first pillar. In practice, there are already various inter-connections between the
first and the third pillar.43
Thus representatives of OLAF (first pillar) may also participate
in the activities of joint teams (third pillar), while the European Commission
(first pillar) may ask member states why they have not complied with requests from
Europol (third pillar). This is why, in the long run, the pillar structure will not be
able to endure.44
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European Journal of Crime,
80 2002 - 1 Criminal Law and Criminal Justice
43. The numerous inter-connections at police level between the first, second and third pillars are exhaustively
analysed by Fijnaut (C.J.C.E. Fijnaut, ‘Het politiebeleid in de Europees Unie’ , in G.J.M. Corstens
and M.S. Groenhuijsen, eds., Rede en recht (Keijzer-bundel) (Deventer 2000) pp. 249–277.).
44. C.J.C.E. Fijnaut, loc. cit.
THES
Supranational direction of investigation and prosecution will inevitably reduce
national influence. This is the price that the member states will have to pay, since
otherwise real and effective (democratic and judicial) supervision of the police will
never get off the ground. And, without effective supervision, there can be no question
of a European police force being equipped with real executive powers. This would
be unsafe, in a phase of European integration in which, in the field of the fight against
crime, repression dominates.45
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