2691115301_f3b8699d5a_b.jpg Justice & Home Affairs Police Cooperation in the EU Schengen Implementation Treaty Europol Europol Regulation 2016 2691115301_f3b8699d5a_b.jpg Intelligence Information exchange: •Personal data, info ID, number plates, mobile numbers, registration numbers., etc. •Criminal record data •Signals/Alerts (stolen, missing, kidnapped, wanted, etc.) 2691115301_f3b8699d5a_b.jpg Operational measures They may include covert action: •cross-border surveillance, •controlled deliveries, •interception of telecommunications or •the use of undercover agents • Before Schengen ● ●Berne club (1971); Trevi forum (1975); Vienna club (1979); Police Working Group on Terrorism (1979) • ●Platforms for exchanging practical information ● ● ● ●Schengen Implementation Convention (1990) ●Title III includes rules on ●Information exchange and ●provides only operational procedures ●cross-border surveillance or tracking ●cross-border hot pursuits 2691115301_f3b8699d5a_b.jpg Schengen Implementation Convention (SIC) on operational measures Cross-border hot pursuits •pursuing suspects caught in the act to the territory of another country •as a rule: prior notice to ‘hosting’ authorities •in some cases, it may inform them later •the pursuit has to be taken over as soon as possible by the ‘hosting’ authorities •security search may be conducted; handcuffs may be used ; objects may be seized (but then handed over to ‘hosting’ authorities) • ●Europol Convention (1995) ●created as an intergovernmental organisation, entirely dependent on member states ●The Europol’s aim: ●to improve cooperation between national authorities and efficiency of their actions in preventing and fighting international crime ●Main functions: ●working as a hub for information and intelligence ●supporting national investigations ●Europol’s organization, then: control of Europol completely lied in the hands of the Council ● ●Schengen Information System (SIS) ●legal basis SIC (Art. 93); in 1995 it became operational ●a large-scale IT system ●SIS II (2013) ●Its scope is nowadays defined in: ●Council Decision 2007/533/JHA: Law enforcement ●issuing and consulting alerts on missing persons and on persons or objects related to criminal offences ●Regulation 1987/2006: Border control ●for e.g. issuing or accessing “Schengen-wide alerts for refusing entry or stay into the Schengen area” ●It is based on a ‘hit/no hit’ query function ● ● 2691115301_f3b8699d5a_b.jpg The a ‘hit/no hit’ query function of SIS ●Convention on Mutual Assistance in Criminal Matters (2000) ●in the field of police cooperation, ●it provides for three operational tools: ●use of undercover agents ●joint investigation teams ●controlled deliveries ● 2691115301_f3b8699d5a_b.jpg Operational tools provided by the 2000 Convention Joint investigation teams •On the basis of an agreement between member states concerned •a team is set up for a specific aim involving investigating officers, judges and members of the public prosecution service •information can directly be shared without the need for formal requests •investigative (covert and coercive) measures can directly be requested between team members, without the need for letters rogatory (formal requests and procedure) •all team members can be present at house searches, interviews, and the like in all jurisdictions covered ●JIT Framework Decision (2002) ●on joint investigation teams (JITs) ●due to the slow progress towards ratification of the MLA Convention, the JIT concept was taken over and copy-pasted to secondary legislation of the EU ●Framework Decision 2002/465/JHA ●Prüm Treaty (2005), signed by Austria, Belgium, France, Germany, Luxembourg, the Netherlands and Spain ●function: facilitates automated exchange between national databases for specific investigations ●automated searching and transfer of data in relation to ●DNA profiles; ●fingerprints; and ●vehicle registration data ●in 2008 the Council adopted Decisions (the “Prüm Decisions”) transferring most treaty provisions into secondary EU law ●Europol Decision (2009/371/JHA) ●Europol transformed into a European agency ●receives funding from the Community budget (and staff is now EU staff) ●Commission obtains a voting right in the Management Board ●Europol director, the chairman of the board and the Presidency of the Council must appear for EP hearings ●Europol’s mandate extended to all serious forms of international crime. ●Lisbon Treaty on police cooperation ●OLP for collection, storage, processing, analysis and exchange of information ●still: special legislative procedure for operational cooperation ●Europol ●acquired a treaty-based status of EU agency ●its ‘structure, operation, field of action and tasks’ is subject to ordinary legislative procedure ● ●Europol Regulation (2016/794) ● enhancing Europol’s role as “hub for information exchange” and administrator of criminal intelligence, strategic analyses and threat assessments ●“obligations […] requiring Member States to provide Europol with the data necessary for it to fulfil its objectives.” (Preamble) ●the burden on member states to comply with a request by Europol to initiate an investigation and to explain in case an investigation has not been carried out ●scrutiny of Europol’s activities by the European Parliament and national parliaments (e.g. through annual reporting) 2691115301_f3b8699d5a_b.jpg Nowadays, Europol •uses its intelligence-gathering and analytical capabilities to support more than 40,000 international criminal investigations each year, •identifies and assesses emerging security threats, •may take part in Joint Investigation Teams (but has no direct powers of arrest and no authority to use coercive measures) 2691115301_f3b8699d5a_b.jpg wide range of bilateral or multi-national cooperation frameworks (including Schengen Implementing Convention, Prüm Treaty, European Convention on Mutual Assistance and separate JIT agreements) Many police practices are excluded from judicial review and democratic scrutiny Getting stronger on intelligence Weak operational capacity EU starting as a level playing field of information exchange between national information systems: simplifying rules of mutual access and raising interoperability Critical Issues •Weak operational capacity •Getting stronger on intelligence •No uniform legal framework in the course of time Europol has managed to assert itself by No uniform legal framework However, with the 2016 Europol Regulation, the EU institutions (Commission and EP) acquired some leverage over Europol only limited operational police cooperation, which has been largely left to multilateral intergovern-mental cooperation •by combining and coordinating the knowledge, information, from its central intelligence position •by delivering operational and strategic analysis, threat assessments •able to provide topics for the European political agenda (Schalken & Pronk 2003; Piquet 2017) Leading statement for in-class debate of tomorrow: The EU should have its own EU Criminal Code and EU Criminal Procedure Code. Leading statement for in-class debate of today: Europol should acquire more operational powers END Santino Lo Bianco PhD Email: s.lobianco@hhs.nl •