Crime, Criminal Law and Criminal Justice in Europe : A Collection in Honour of Prof. Em. Dr. Dr. H. C. Cyrille Fijnaut [1 ed.] 9789004250789, 9789004250772

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Crime, Criminal Law and Criminal Justice in Europe

Crime, Criminal Law and Criminal Justice in Europe A Collection in Honour of Prof. em. dr. dr. h.c. Cyrille Fijnaut Edited by

Hans-Jörg Albrecht and

André Klip

LEIDEN • BOSTON 2013

Library of Congress Control Number: 2013931426.

isbn 978-90-04-25077-2 (hardback) e-isbn 978-90-04-25078-9 (e-book)

Copyright 2013 by Koninklijke Brill NV, Leiden, the Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Global Oriental, Hotei Publishing, IDC Publishers and Martinus Nijhoff Publishers. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorisation to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper.

Contents

Sources of Articles

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Preface

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Introduction Cyrille Fijnaut

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Part I – Crime 1. The Italian and Russian Mafia The Integration of the Italian Crime Scene  Letizia Paoli

3

Criminal Kaleidoscope: The Diversification and Adaptation of Criminal Activities in the Soviet Successor States  Louise Shelley

43

Twenty Years Ago: The Assassinations of Giovanni Falcone and Paolo Borsellino Cyrille Fijnaut

61

2. The Crime Problems in Central and Eastern Europe Social Changes and Rising Crime Rates: The Case of Central and Eastern Europe69 Miklós Lévay Experiences of the International Crime Victim Survey in Slovenia, Croatia, Macedonia and Yugoslavia Biljana Simeunović-Patić

87

Understanding a ‘Culture of Violence and Crime’: the Kanun of Lek Dukagjini and the Rise of the Albanian Sexual-Slavery Rackets Jana Arsovska

111

vi contents Part II – Criminal Law 1. The Division of Criminal Law Power in the European Union The Influence of European Community Law on the Criminal Law of the Member States  Roger France

137

The Treaty Establishing a Constitution for Europe and Challenges for Criminal Law at the Commencement of 21st Century Maria Kaiafa-Gbandi

181

2. The Legal Approximation of the Fight against Regular Serious Crime The Protection of the Euro against Counterfeiting Ciro Grandi A Definition That Could Not Work: the EU Framework Decision on the Fight against Organised Crime Francesco Calderoni

213

253

3. The Criminalisation of White Collar Crime Forging the European Cartel Offence: the Supranational Regulation of Business Conspiracy Christopher Harding Union Regulatory Criminal Law Competence after Lisbon Treaty Jacob Öberg

273 297

Part III – Criminal Justice 1. The Collapse of the Iron Curtain and the Transition of Justice Problems in Blaming and Punishing Individuals for Human Rights Violations: the Example of the Berlin Wall Shootings  Susanne Walther

327

Regime Change, State Crime and Transitional Justice: a Criminal Law Retrospective Concentrating on Former Eastern Bloc Countries Jörg Arnold in collaboration with Emily Silverman

355

2. The Cooperation between Police Services in Border Areas Police Co-operation in the English Channel Region 1968-1996  James Sheptycki

381

contents vii Policing across a Dimorphous Border: Challenge and Innovation at the French-German Border Detlef Nogala

407

On Joint Investigation Teams, Europol and Supervision of Their Joint Actions423 Tom Schalken and Maarten Pronk Joint Investigation Teams in the European Union: Article 13 JITS and the Alternatives439 Toine Spapens

3. The Foundation of European Police Services Euro-Cops? Just Say Maybe: European Lessons from the 1993 Reshuffle of US Drug Enforcement  Frank Verbruggen

463

Towards an Independent European Agency to Fight Fraud and Corruption in the EU? John Vervaele

527

4. The Establishment of a European Public Prosecution Service A European Public Prosecution Service: Comments on the Green Paper Cyrille Fijnaut and Marc Groenhuijsen

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Constitutional Conditions for a Public Prosecutor’s Office at the European Level Walter van Gerven

567

The Januses of Justice: How Prosecutors Define the Kind of Justice Done across Europe Marianne Wade

595

5. The Mechanisms for Cooperation in Criminal Matters The European Arrest Warrant – the Early Years: Implementing and Using the Warrant  Mark Mackarel

621

DNA Analysis and Criminal Proceedings: The European Institutional Framework649 Elisabeth Symeonidou-Kastanidou

Sources of Articles

The articles in this book appeared in the following issues of European Journal of Crime, Criminal Law and Criminal Justice: Letizia Paoli, ‘The Integration of the Italian Crime Scene’ – 1996, vol. 4, no. 2, pp. 131-162. Louise Shelley, ‘Criminal Kaleidoscope: The Diversification and Adaptation of Criminal Activities in the Soviet Successor States’ – 1996, vol. 4, no. 3, pp. 243-256. Cyrille Fijnaut, ‘Twenty Years Ago: The Assassinations of Giovanni Falcone and Paolo Borsellino’ – 2012, vol. 20, no. 2, pp. 131-136. Miklos Levay, ‘Social Changes and Rising Crime Rates: The Case of Central and Eastern Europe’ – 2000, vol. 8, no. 1, pp. 35-50. Biljana Simeunovic-Patic, ‘Experiences of the International Victim Survey in Slovenia, Croatia, Macedonia and Yugoslavia’ – 2002, vol. 10., no. 2-3, pp. 117-137. Jana Arsovska, ‘Understanding a “Culture of Violence and Crime”: The Kanun of Lek Dukagjini and the Rise of the Albanian Sexual-Slavery Rackets’ – 2006, vol. 14, no. 2, pp. 161-184. Roger France, ‘The Influence of European Community Law on the Criminal Law of the Member States’ – 1994, vol. 2, no. 4, pp. 324-358. Maria Kaiafa-Gbandi, ‘The Treaty Establishing a Constitution for Europe and Challenges for Criminal Law at the Commencement of 21st Century’ – 2005, vol. 13, no. 4, pp. 483-514. Ciro Grandi, ‘The Protection of the Euro against Counterfeiting’ – 2004, vol. 12, no. 2, pp. 89-131. Francesco Calderoni, ‘A Definition that Could Not Work: The EU Framework Decision on the Fight against Organised Crime’ – 2008, vol. 16, no. 3, pp. 265-282. Christopher Harding, ‘Forging the European Cartel Offence: The Supranational Regulation of Business Conspiracy’ – 2004, vol. 12, no. 4, pp. 275-300.

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Jacob Öberg, ‘Union Regulatory Criminal Law Competence after the Lisbon Treaty’ – 2011, vol. 19, no. 4, pp. 289-318. Suzanne Walther, ‘Problems in Blaming and Punishing Individuals for Human Rights Violations: The Example of the Berlin Wall Shootings’ – 1993, vol. 1, no. 2, pp. 104-125. Jörg Arnold and Emily Silverman, ‘Regime Change, State Crime and Transitional Justice: A Criminal Law Retrospective Concentrating on Former Eastern Bloc Countries’ – 1998, vol. 6, no. 2, pp. 140-158. James W.E. Sheptycki, ‘Police Co-operation in the English Channel Region 1968-1996’ – 1998, vol. 6, no. 3, pp. 216-235. Detlef Nogala, ‘Policing across a Dimorphous Border: Challenge and Innovation at the French-German Border’ – 2001, vol. 9, no. 2, pp. 130-143. Tom Schalken and Maarten Pronk, ‘On Joint Investigation Teams, Europol and Supervision of Their Joint Actions’ – 2002, vol. 10. no. 1, pp. 70-82. Toine Spapens, ‘Joint Investigation Teams in the European Union: Article 13 JITS and the Alternatives’ – 2011, vol. 19, no. 3, pp. 239-260. Frank Verbruggen, ‘Euro-Cops? Just Say Maybe. European Lessons from the 1993 Reshuffle of US Drug Enforcement’ – 1995, vol. 3, no. 2, pp. 150-201. John Vervaele, ‘Towards an Independent European Agency to Fight Fraud and Corruption in the EU?’ – 1999, vol. 7, no. 3, pp. 331-346. Cyrille Fijnaut and Marc Groenhuijsen, ‘A European Public Prosecution Service: Comments on the Green Paper’ – 2002, vol. 10, no. 4, pp. 321-336. Walter van Gerven, ‘Constitutional Conditions for a Public Prosecutor’s Office at the European Level’ – 2000, vol. 8, no. 3, pp. 296-318. Marianne Wade, ‘The Januses of Justice. How Prosecutors Define the Kind of Justice Done across Europe’ – 2008, vol. 16, no. 4, pp. 433-455. Mark Mackarel, ‘The European Arrest Warrant. The Early Years: Implementing and Using the Warrant’ – 2007, vol. 15, no. 1, pp. 37-65. Elisabeth Symeonidou-Kastanidou, ‘DNA Analysis and Criminal Proceedings: The European Institutional Framework,’ – 2011, vol. 19, no. 2, pp. 139-160.

Preface

This book consists of an extraordinary collection of articles. It provides us with an overview of the changed nature of the academic debate on crime related issues over the last twenty years. It demonstrates how research in criminal law and criminology has been innovated in a period in which the iron curtain was no longer in existence and the European Union became an important player in the area of criminal law. Whereas perpetrators of crime never stopped at the borders, for centuries national jurisdictions drew legal lines, which made investigation and prosecution of cross border crime more difficult. In the period since the beginning of the 90s these difficulties have been largely overcome and legislators have started to understand crime not only as a local phenomenon, but also a common European problem. Since 1993, the European Journal of Crime, Criminal Law and Criminal Justice, has been the academic exponent of these developments. It has offered more than any other journal to be a platform for the debate on contemporary criminal policy in Europe and beyond. It was in this period that most national researchers started to write and publish in English and in which they joined a debate that previously took place within one state or one language area only. What is self evident today, was a brilliant idea when it was launched. It was Professor Cyrille Fijnaut’s vision that created the journal. As a criminologist he was one of the first to recognize that crime never stops at the borders and the European integration was going to have a tremendous impact on the criminal law of the Member States and the cooperation between law enforcement agencies. This combination of anticipated developments was risky at the time of the foundation of the journal, but has now proven its justification beyond reasonable doubt. For many, the journal with the long name, was known as the Fijnaut journal, as Cyrille has been the driving force behind the journal also in practice, in assessing numerous articles and stimulating young researchers to enter new waters. It is for these twenty years of engagement that this book has been selected in honour of Cyrille Fijnaut. André Klip Hans-Jörg Albrecht

Introduction Cyrille Fijnaut

A Word of Thanks to Many On 20 September 2011, the editors of the European Journal of Crime, Criminal Law and Criminal Justice – Prof. Dr. Hans-Jörg Albrecht, Prof. Dr. Cyrille Fijnaut and Prof. Dr. Ulrich Sieber – met at the Max Planck Institut für ausländisches und internationales Strafrecht in Freiburg i.B., Germany, together with Prof. Dr. André Klip, the successor to Prof. Dr. Cyrille Fijnaut, the publisher, Lindy Melman, and a number of members of staff of the Institute – Ulrike Auerbach, Michael Knecht and Stephan Rokosch – to discuss the future of the journal. In the course of these discussions, the idea arose to honour my uninterrupted commitment to the journal during the past twenty years (1993-2012) with a volume containing a selection of articles from Volumes 1-20. You, dear reader, are now holding the result of the discussion about this plan in your hands: a collection of about 25 articles selected by me in the spring of 2012. Before discussing the choices that were made to create this collection, it is fitting not only to briefly consider how the European Journal of Crime, Criminal Law and Criminal Justice was set up in the early nineties and the history of the journal over the past two decades. It is also important to thank – in part on behalf of Prof. Dr. Hans-Jörg Albrecht and Prof. Dr. Ulrich Sieber – everyone who made an important contribution to the development of the journal. Without their unceasing support, the journal could never have developed as successfully as it did. The first I should like to mention in this regard are my colleagues at the Catholic University of Louvain and the Max Planck Institut für ausländisches und internationales Strafrecht who, around 1990, immediately gave their support to my idea to set up a European periodical aimed at fostering academic debate about both the problems of crime on the European continent and the criminal justice policy developed to combat them. At the Catholic University of Louvain, my colleagues Prof. Dr. Lieven Dupont, at the time head of the

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Institute for Criminal Law at the Faculty of Law, and Prof. Dr. Tony Peters, then professor of criminology and penology at the same faculty, were immediately convinced that this was an endeavour worth undertaking. On the side of the Max Planck Institute, Prof. Dr. Günther Kaiser, at the time one of the Directors of the Institute, together with Prof. Dr. K.H.Jescheck, embraced the plan at once. I should immediately add that they not only supported the establishment of the journal con amore, but have also continued to warmly support its development. It is in part because of this that I so deeply regretted the passing away of Prof. Dr. Günther Kaiser in 2007 and the death of Dr. Tony Peters on Tuesday, 20 March 2012. Till the end they remained keenly interested in the ups and downs of the journal. In the wake of these initial supporters, the (other) members of the Editorial Board also deserve thanks for their willingness to associate themselves with the journal, both in the period of its establishment and in the later phases of its history. In the second place, we should not overlook the important role played by the successive publishers. Initially, these were the publishers of Kluwer Law and Taxation, Daan Bos and Karel van der Linde: from the moment they heard of the plan to set up a journal, they supported its realization with great enthusiasm. They were as convinced as I was that such a periodical met an increasing need in Europe for academic literature devoted to the classic problems of crime and punishment. After Kluwer Law and Taxation became part of Kluwer Law International in 1995, the journal was consigned to the good care of Lindy Melman. And she has remained till the present day the journal’s guardian angel, as it were. The sale of a part of Kluwer Law International to the centuries-old publishing house Brill in Leiden, The Netherlands, in 2003 did not, fortunately, put an end to the important role she has played for many years in the production and distribution of the journal: it simply moved with her to Brill and is there part of the list that is graced by the imprint of the Dutch publisher, Martinus Nijhoff Publishers, a publishing house that also built its fame in the past, by developing and disseminating academic literature in the field of international law. One cannot talk of publishers without mentioning their editorial departments. In the third place, it is appropriate to offer a word of thanks here to the editors at Kluwer Law International and Brill, in particular Peter Buschman and Brenda Kaldenbach. They have for many years been the unknown, but diligent workers “in the bow” of the publishing houses concerned, and have devoted great efforts to ensure the smooth production of the journal. Desk editors need a well-functioning editorial secretariat in order to do their job well. For this reason, in particular Michael Knecht of the Max Planck Institute deserves thanks for his many years of commitment to the journal. From the end of the nineties, when Prof. Dr. Frank Verbruggen and I could no longer run the secretariat of the journal from the Catholic University of Louvain, he took



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on this crucial task and carried it out, amidst all his other concerns, until 2011, with great care, and – also of importance – on occasion with a lot of humour as well. I recall our mutual cooperation in the past fifteen years with a great deal of pleasure. Without Michael Knecht it would not have been possible to guarantee the regular appearance of the journal for all those years. In the fourth place, mention must be made of the members of the Editorial Board who, in the first volumes of the journals, supplied with care various regular sections on relevant developments at important European institutions, as well as the European Community, the European Union and the Council of Europe. In particular, the late Prof. Dr. Bert Swart and Dr. Barbara Huber deserve personal mention. In addition, the successive heads of the library of the Max Planck Institute should be mentioned, who periodically supplied and continue to supply extensive overviews of new criminological literature in Europe. For the first few years, Prof. Dr. Josef Kürzinger compiled these overviews. Since then, Elisabeth Wynhoff has compiled them with great regularity and care. In addition – and in the fifth place – it should be noted that editorial boards and publishers can achieve nothing if good authors do not believe in the importance of their journals for the systematic promotion of high-level academic debate about the subjects on which they focus and are therefore also prepared to offer their work for publication to these journals. Inevitably, editors, publishers and authors are condemned to each other. For reasons that will be explored below, it was not, in this case, always easy to acquire enough good copy. This does not alter the fact, however, that the journal’s ability to “round the cape” of its twentieth volume is proof of the fact that, time and again, manuscripts of sufficient quality – sometimes following the necessary alterations – were offered for publication in time, or just in time. For this reason, it is only normal that this word of thanks should also apply to all those who supported the journal in the past years by choosing it as the forum through which to raise their voice in the academic debate. If we consider that roughly 400 articles have been published so far, it becomes clear that this applies to a considerable group of authors, also if we include those authors who published more than one article in the journal. And last but not least, it should be acknowledged here that the fact that the European Journal of Crime, Criminal Law and Criminal Justice can celebrate its twenty-year existence by means of this collection is thanks to its many readers and in particular therefore to the librarians who have included this periodical in their collections. Naturally, this group includes not only the libraries that still take a print subscription to the journal, but also increasingly those libraries that enable their readers to consult the journal digitally through their electronic subscription. Offering the possibility to read the journal in one way or another is quite a different thing from readers actually consulting it, however. And precisely because of this it is so gratifying that the number of people who

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consult the journal digitally and who actually download articles has increased so greatly in the recent past. More than any other statistic, these figures confirm our feeling that the efforts made since the nineties to ensure that the journal became a publication of quality and value have certainly not been in vain. They moreover confirm that the perception at the time that there was a need for such a journal was correct.

The Foundation of the Journal Periodicals are – as the word itself indicates – documents of their period. In other words, they do not just suddenly appear out of nowhere, but are established by people in a certain period of time in order to keep themselves and others up to date. This periodical is no different. On the one hand, my personal circumstances favoured the establishment of the journal; on the other, the structural changes in Europe played an important role. In order to make this coincidence of circumstances clear I should note here that in 1989 I had been asked by the Rector of the Catholic University of Louvain to become a professor at this university. Although it was not easy to agree to this request – I had at that point in time just been professor of criminology and criminal law for three years at the Faculty of Law of Erasmus University in Rotterdam – I nevertheless accepted the appointment, for reasons that are not of importance here. The question that subsequently arose was: what to do in Louvain? In consultation with my close colleagues Prof. Dr. Lieven Dupont and the late Prof. Dr. Tony Peters, I decided to focus not only on the development of general criminology and the situation of the Belgian police force, but in particular also on general developments that were occurring at that time in Europe, and which could have far-reaching structural consequences in the area of crime and punishment for the whole continent – just as much for Western Europe as for Central and Eastern Europe. Such developments were not only the collapse of the Soviet Union and German reunification, but also the transformation of the European Economic Community into a European Union by means of the unification achieved by the so-called Internal Market, and the conclusion of a treaty between the Member States, which later became the Maastricht Treaty. The above-mentioned decision led to two concrete initiatives: on the one hand, the idea to establish a journal in which these European developments would be discussed; on the other, to organize a lecture course at the Catholic University of Louvain on a subject that until then had not appeared on any university curriculum in Europe: European Criminal Law. I taught this course from 1992-1993 onwards in the LLM programme that began at the Louvain Faculty of Law in that academic year. The first issue of the European Journal of Crime, Criminal Law and Criminal Justice appeared halfway through the



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academic year 1992-1993. Establishing the journal, however, was a more complicated business than constructing a course in which the relevant supranational and intergovernmental developments in both the Council of Europe and the European Union were discussed. In the first place, we needed to ascertain whether a publisher would be prepared to publish a periodical that focused on these developments. I therefore contacted in the winter of 1989 the publishing house Kluwer Law and Taxation, with whom I had shortly before had a good experience working on an international publication. As mentioned above, one of the publishers of this house, Daan Bos, was immediately convinced of the importance and value of such a journal. The first conversation with him resulted in April 1989 – after consultation with the above-mentioned colleagues from Louvain – in the formulation of a memorandum outlining the main aspects of the project. A discussion of this document with the above-mentioned publisher did not follow immediately, however, as he had in the meantime taken another job, and his successor, Karel van der Linde, did not initially have time to study the proposal in depth. Once this opportunity did arise in the spring of 1990, he too was enthusiastic about the project. He also made the suggestion that we set the journal up in cooperation with another large academic institution in Europe. This good advice resulted in my seeking contact in the winter of 1990 with Prof. Dr. Hans-Jörg Albrecht at the Max Planck Institut für ausländisches und internationales Strafrecht in Freiburg i. B to discuss whether we could together set up the journal I had in mind. This institute was the obvious choice in my view and that of my collegae proximi in Louvain. Firstly, due to various circumstances, we had been well acquainted with the staff, the research and the charisma of this institute for a number of years; it constitutes, as it were, one of the most important spiders, if not the most important spider, in the international web of criminal law and criminological research. Secondly, it was important for us that the organization of this institute – as is that of the Criminal Law Department of the Catholic University of Louvain – is still based on the idea of gesamte Strafrechtswissenschaft that was developed in the 1880s by Prof. Dr. Franz von Liszt at the University of Marburg and which he had subsequently promoted to a Leitmotiv for the famous Internationale Kriminalistische Vereinigung. This idea in essence is that criminal law and criminology need to be studied in relation to each other and that the interaction between them is necessary to develop and execute a responsible criminal justice policy. And thirdly, it was entirely obvious to us – thanks to various meetings and publications – that the directorate of the Max Planck Institute were naturally also fully aware of the repercussions, which the political and institutional revolutions could have for crime and crime prevention, and therefore also for criminal justice in Europe.

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For these three reasons, it is not surprising that the directorate of the Max Planck Institute – in the person of Prof. Dr. Günther Kaiser and Prof. Dr. HansJörg Albrecht – were immediately positive in 1990 about the proposal to join forces in creating the journal in question. It nevertheless took until July 1991 – as a result of my transfer from Erasmus University Rotterdam to the Catholic University of Louvain in October 1990 – before I could discuss with them in Freiburg in detail what form the journal would take: the aims and scope, the structure of the journal, the compilation of the Editorial Board, the organization of the secretariat etc. In the course of August 1991, I subsequently discussed the arrangements made in Freiburg with the publisher, Karel van der Linde. He was in complete and immediate agreement with them, and quickly took the necessary practical measures to announce the establishment of the journal, to issue a Call for Papers and design a cover and accompanying letterhead. In the Foreword to the first issue, which appeared in early 1993, the aims and scope of the journal were laid out in a few paragraphs. It is appropriate to quote a few lines from this text here: It is beyond any doubt that well-known journals in several European countries regularly pay attention to the afore mentioned developments. But those who two years ago took the initiative to establish this journal (…) were of the opinion that the time had come to provide a real European forum for discussion of criminal policy and legal as well as criminological research in the fields concerned and to serve as a major source of information about those issues. The option of an English-language journal is not only based on the impression that in the majority of European countries most of the interested readers are familiar with English, but is also inspired by the idea that as many people as possible outside of Europe – both North and South America as well as Asia and Africa – should have the opportunity to be informed about what is going on in Europe regarding crime, criminal law and criminal justice.

The Relative Successes of the Initiative In conjunction with this quote I may first of all stress that the journal has over the years – in particular thanks to its digitization – become a major global player in the field. And this may indeed be seen as a major success for a journal that twenty years ago was established in relation to a field that at that time was virtually still unknown territory. From a recent overview it can be gathered that in the period April 2009 to May 2011 e.g. thousands of full-text downloads of articles were made. And in addition to this great number of downloads, we should not lose sight of the fact that the journal still has – in comparison with other international or European journals – a large number of subscribers to its print version. However, the success of a journal can clearly not only be measured by the number of downloads and the number of print subscriptions, however important



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these figures may be, not only for the authors, the editors, the publisher but for the readers of course too. Its success can and must be measured – depending on its aims, its resources and its context – by completely other criteria than such numbers. However, such an evaluation exercise would in many ways exceed the boundaries of an introduction to a selection of articles from a journal like the European Journal of Crime, Criminal Law and Criminal Justice. Moreover, it should not be undertaken by someone such as myself who has for all this time been so intimately connected with the ups and downs of the journal. What would be appropriate is to make note of a number of points relating to the editorial policy that has been followed in the past years. Because this policy has, to a certain extent, determined which articles were published and therefore also indirectly determined which articles could be chosen for this collection. As may be concluded from the selection of articles included in this collection, the first invariable aim was to place articles that match in one way or another the scope or aim of the journal. This may seem easier to do than it in fact is in practice. The difficulty arises primarily from the fact that, as a result of the ever-increasing specialization within scholarly research, more and more specialized journals appear, and as a result academic authors, certainly the younger generation of academic authors, feel themselves increasingly obliged to offer the results of their research to such specialized journals and not to journals such as the European Journal of Crime, Criminal Law and Criminal Justice, which seek to explore the formal and material borders between (sub) disciplines. The fact that articles, which appear in the latter type of journals, can be and are consulted by a much broader audience of readers than articles in specialist journals does not carry enough weight to counter this practice; nor does the fact that all universities nowadays claim to greatly value interdisciplinary research. In practice, such research materializes with difficulty at universities, nor is it favoured officially in any way or given more weight in the curriculum or in the allocation of research resources. This is why, incidentally, I have no problem acknowledging that it has not always been easy to acquire, in time, sufficient high quality copy for the journal. In a sense, it was rowing against the current. Secondly, it should be stressed here that it was always our conscious aim to offer authors from the whole of Europe the opportunity to publish in the journal. This was, of course, not only due to the revolutionary developments in Europe that were the primary reason for the creation of the journal, as discussed above. Of equal importance was (and still is) the consideration that the academic debate about the consequences of these revolutions for the development of the problems of crime and the structure of criminal justice in Europe should under no circumstances be allowed to be dominated, let alone monopolized, by authors from Western Europe. Honouring this principle in the past twenty years has

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not been easy, however. In order to clarify this, it should be stressed to start off with that it is still difficult to find enough authors even in countries such as the Netherlands, Belgium, France, Germany, Denmark, Sweden, Norway and Finland who are prepared to and capable of writing articles in English about European developments in the fields which are central to the journal. This is of course due to the fact that English is not their mother tongue (as far as this goes, British authors are over-privileged), but certainly also to the fact that crime, crime prevention and criminal justice are subjects that – unlike economic law or international relations – are still very strongly dominated by the sovereign jurisdiction of the state and are therefore almost automatically still discussed in terms of national history, institutions and feelings, and thus also in the (great variety of) relevant national languages. But what applies to authors in Western Europe applies just as much to authors from Central Europe, Eastern Europe and Southern Europe. Because of the historical fate of the states involved there are proportionally still fewer authors who can write articles in English unaided and who have the financial resources to have their articles translated into English. As a result, it will remain a challenge in the coming years to recruit authors from these parts of Europe. Because due to the enormous language problem in Europe – which apart from a variety of other (economic and political) problems has such a negative impact on the development of a shared academic culture on this continent – it remains very important that the voices of authors from all kinds of language areas are heard in a European forum such as this journal, relating what is actually happening in their direct environment and their experiences and insights with respect to developments in Europe as a whole. Thirdly, it has always been the policy of the Editorial Board to keep the journal open as much as possible to young researchers. The reason why this policy was adopted may be easily guessed: precisely because a journal such as this – for the reasons mentioned above – does not “naturally” have a permanent and extensive circle of authors at its disposal, it is of the greatest importance for the journal to build such a circle itself. And how better to do this than by giving talented researchers at a young age the chance to present the fruits of their research to an international audience? This point of departure has resulted demonstrably in a number of such young authors grasping this opportunity and writing articles that have lost none of their academic or social relevance even today. I am inclined to support this assertion with examples, but will refrain from this because such an argument could quickly fail to do justice to the contributions, which other young authors have made to the journal. As a general point, what may be added to the previous remarks is that it remains important for the journal to continue to honour this principle in the future too. The journal’s future is to a great extent dependant on the future that those young researchers, in part thanks to their



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publications in this journal, will hopefully be able to build at universities and (other) research institutions. Fourthly, and finally, I do not wish to obscure the fact that the journal could possibly have been more successful in the past years than its current figures reflect. This could have been the case had universities in particular had more resources to organize a journal such as this, year in, year out. By ‘more resources’ I mean in particular more space for young professors to devote the necessary time and energy to this pre-eminently academic activity. Had this space been made available then it would have been possible to identify suitable authors in the academic world and to persuade them to publish in the journal or – where necessary – offer them guidance to do so, more proactively than in the past years. The Board, together with the secretariat, did what it could, given the circumstances in the past years, but in this regard too there is certainly room for improvement. I am the first to acknowledge this. But whether this space can be exploited depends to a great extent on the academic policy pursued in countries such as the Netherlands, Belgium and Germany etc.

The Criteria for the Selection of 25 Articles I have already noted above that in the past twenty years approximately 400 articles were published in the journal. Because it was agreed with the publisher that the current collection could contain about 25 articles, this meant that quite a rigorous selection needed to be made. How this selection was made is therefore an important question. In first instance, three general criteria were followed. Firstly, the aim was to select articles that together reflect the entire period of 1993-2012. A second criterion followed on from this: to try to select articles that if possible covered the developments in the entire European continent. And thirdly, an obvious criterion was to take into account the three elements contained in the title of the journal: problems of crime, developments in criminal law and changes in criminal justice. It almost goes without saying that the application of these three general criteria was not easy, given the great variety of topics explored in the journal in those 400 articles. Consequently, a number of additional criteria were formulated along the way. The first supplementary criterion, adopted to ensure that the collection would be readable and useful, was that some kind of thematic coherence between the articles chosen needed to be found. The second supplementary criterion was the relative importance of articles with respect to developments, which took place in Europe in the three areas that the journal covers. And the third supplementary criterion was personal: my own academic interest in certain topics, such as, among others, the development of

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cooperation in the areas of the police and justice, and criminalization of highly damaging economic misconduct. The result of this selection process was a collection of articles that have been organized as follows. In the first section – Crime – two categories of articles have been included. Firstly, articles about problems in the area of crime that, certainly in the nineties, were regarded as serious threats to the security of, and security in, the European Union: Russian and Italian organized crime. Secondly, thee articles were selected that deal with problems of crime which became manifest in Central and Eastern Europe after the disappearance of the Soviet Union and after the collapse of Yugoslavia. The second section – Criminal Law – is divided into three parts. The first contains two articles that deal with the important issue of the allocation of criminal law power in the European Union. The second subsection contains two articles about attempts by the European Union to streamline, at the level of the Member States, the legal framework for combating serious forms of regular crime. The third subsection also contains two articles. They deal with the criminalization of what has, since the publication of the eponymous book by Edwin Sutherland in 1949, been termed white-collar crime. The third section – Criminal Justice – contains five sub-sections. The first contains two articles about the criminal justice consequences of the disappearance of the Iron Curtain. The second sub-section contains three articles about a subject that, due to the creation of the European Union, has increased greatly in importance: police cooperation in the border areas of the Member States. The third and fourth sub-sections follow on from this closely. These five articles deal with the establishment of European police services and of a European Public Prosecutor’s Office. And the fifth and last sub-section contains two articles about important new forms of criminal justice cooperation between the Member States: the Arrest Warrant and the availability of DNA data.

Part I Crime

1. The Italian and Russian Mafia

The Integration of the Italian Crime Scene Letizia Paoli 1 Ph.D. Student, Department of Social and Political Sciences European University Institute Firenze, Italy

Since Tommaso Buscetta revealed the existence of a secret mafia association named Cosa Nostra to Judge Giovanni Falcone in 1984, much has been accomplished by the law enforce­ment and the academic communities in gathering knowledge of Italian organized crime. In addition to the Sicilian Cosa Nostra, the existence of three other major clusters of crime groups has been proved: the Calabrian ’ndrangheta, the Neapolitan camorra and the Apulian ‘Sacra Corona Unita’.2 Whereas the latter is a quite recent phenomenon that has only de­veloped in the last fifteen years, the other three appear to have existed since mid-19th century and to have developed a remarkable cultural and political unity, notwithstanding the absence of superordinate coordination bodies. Over the last decade, thanks to the declarations of dozens of former associates,3 the internal organization and the culture of these four groupings – which can be roughly termed as mafia groups4 – have been largely reconstructed; their modalities of intervention 1  I would like to thank Nicky Hargreaves, lecturer of the European University Institute, who kindly revised this article. 2  According to the latest police estimates, there are about 90 mafia families, made up of 3,000 men, associated with the Sicilian Cosa Nostra, whose home seat is in the Palermo and Trapani provinces and to a minor extent in the other administrative units of the island. Roughly the same number of units and associates is also estimated for the Calabrian ’ndrangheta, whose base is in the Reggio Calabria province and in its environs. Approximately 145 groups are allegedly active in the provinces of Campania (90 of which are registered in the Naples province), which total about 4,000 members and are globally known as camorra. Lastly, about 145 criminal groups, consisting of around 1,600 individuals, are believed to operate in Apulia, a third of which, located in the provinces of Brindisi and Lecce, are associated in a federation named ‘Nuova Sacra Corona Unita’. See Ministero dell’Interno, Rapporto annuale sui fenomeno della criminalità organizzata per il 1993 (Roma, 1994), and Rapporto annuale sui fenomeno della criminalità organizzata per il 1994 (Roma, 1995), passim. 3  According to the latest data published by the Servizio Centrale Protezione of the Italian Interior Ministry, the number of people that were under state protection at the end of 1995 was more than 1,100, over 90% of whom are former members of crime organizations (popularly termed as ‘pentiti’). 4  As is well-known, the word ‘mafia’ was originally associated either to a peculiar set of attitudes and behaviour of the Sicilian people or to a criminal organization of Sicilian origin.

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into the wider social systems have been analyzed and even their net­works of accomplices and supporters in the ‘legal’ society have begun to be identified. Almost paradoxically however, the ‘discovery’ of the corporate nature (which had long been denied by most scholars) and the specific facts of each crime coalition has taken place at the same time as a process of integration and blurring of distinctions and boundaries on the Italian crime scene. This process represents the main object of this article. It consists of a two-fold movement. First of all, it involves the four major crime coalitions and it manifests itself in a growth of contacts, business exchanges and partnerships among the regional home seats and their branches in Northern and Central Italy and abroad. In its turn, this intense in­teraction has fostered the circulation of organizational models and symbolic codes among them, and is currently favouring the development of ‘vertical integration’. The second part of the trend towards the unification of the Italian ‘crime society’ involves the other actors in the illegal arena – ranging from financial and economic ‘crooks’ to politi­cians and firms involved in corruption schemes, from illicit lobbying networks to terrorist groups. As we will see in the second part of this essay, the relationships between these sub­jects and ‘traditional’ mafia groups have been greatly intensified over the last twenty years, leading to the sharing of similar methods of intervention in the Italian economic and political systems and even to the partial merging of some of them.

1. The Entrepreneurial Transformation A major stimulus towards the development of close contacts and exchanges among the three most rooted crime coalitions was provided by their involvement in large-scale illegal busi­nesses. Whereas the camorra has always had more pronounced entrepreneurial attitudes,5 in the case of Cosa Nostra and ’ndrangheta the rise of the ‘entrepreneurial mafia’ cannot be dated back before the mid-1960s. From the beginning of the century the term has been frequently employed in order to refer also to the Calabrian crime phenomenon, which for a long time lacked a ‘label’ of its own and which presents strong analogies in terms of values, behaviour and social setting with the Sicilian mafia. Strictu sensu, the term ‘mafia’ should be used only for the Sicilian and Calabrian phenomenology. In fact, the Campanian camorra has its own historical origins, with a well-defmed identity since the early 19th century, and significantly differs in its articulation from both Cosa Nostra and the ’ndrangheta. In its tum, the Apulian Sacra Corona Unita is a recent phenomenon, which, though imitating the organization and the strategies of intervention of the three older groupings, presents a completely different pattern of formation and consolidation. Nonetheless, given that the aim of the present essay is not a comparison of the four major Italian crime coalitions, the word mafia will be used to refer to all of them, following the current use. 5  See I. Sales, La camorra. Le camorre (Roma [1988], 1993); M. Marmo, ‘Tra le carceri e i mercati. Spazi e modelli storici del fenomeno camorrista’, in P. Maery and P. Villani, eds., La Campania, in Storia d’Italia. Le regioni dall’Unità a oggi (Torino 1990).



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Before that date in fact, though Sicilian and Calabrian ma­fiosi carried out some limited illegal economic activities – in particular extortion – they had not yet identified with the forces of market and accumulation. Throughout the 1960s in Sicily and Calabria the majority of mafia members derived their income mostly from legal activities and maintained their authority in the local communities by accomplishing functions of pro­tection and mediation that the Italian state was unable to perform directly. ‘Money was not the base of all.’ – the ‘pentito’ Tommaso Buscetta points out – ’It was not compulsory to get rich, in order to maintain one’s position of men of respect’;6 while, according to the Catania turncoat, Antonino Calderone, even in the late 1960s the Sicilian mafiosi were ‘starving to death’.7 Not by chance, given the above, it was in primis that, in the early 1960s some camorristi entered into the wholesale sector of a long-distance illegal market, by organizing the unload­ing and sale of cartons of smuggled cigarettes from ships dropping anchor in the Thyrrenian waters. Later on, Sicilian Cosa Nostra and Calabrian ’ndrangheta members followed, reacting to the processes of economic and cultural modernization which affected the whole country threatening to make mafia groups obsolete and to undermine the traditional basis of their le­ gitimation in the local communities. Adapting to the values that were becoming prevalent, the mafiosi converted the traditional mafia value of honor into wealth and, by exploiting the strength of mafia bonds and the power derived from the employment of violence, in a short time they were able to forge relevant positions in some major illegal markets – first in the tobacco and then in the drug markets – and to impose their presence in some important legal ones, most notably in the sphere of public works. Thus, Sicilian and Calabrian ‘men of ho­nor’ quickly amassed huge wealth,8 succeeded in maintaining the same social status and even increased their power in their local settings. Whereas in the past each mafia group limited its action to the local community, the ‘entre­preneurial’ transformation has fostered contacts and deals among members of different groupings, by widening the geographical scope and the sectors of their action. Since the 1970s the exchanges of illicit goods P. Arlacchi, Addio a Cosa Nostra. La vita di Tommaso Buscetta (Milano, 1994) p. 110. Commissione Parlamentare d’inchiesta sui fenomeno della mafia e sulle altre associazioni similari (hereinafter Commissione Antimafia), Audizione del collaboratore di giustizia Antonino Calderone (Roma, 1992 November II) XI legislature, p. 299. 8  According to the estimate of a well-known scholar, from the mid-1970s up to the discovery of the first heroin laboratory, a close-knit network of four Sicilian mafia families, which had settlements and contacts in the United States, was able to produce 4–5 tons of pure heroin per year, which represented some 30 per cent of total US demand. Subtracting the cost of production and transport, this gives a net annual profit of something like 700–800 billion Italian Lire. See P. Arlacchi, Mafia Business. The Mafia Ethic and the Spirit of Capitalism (Oxford, 1986 [Bologna, 1983]) p. 207. For a wider and more up-to-date estimate of the mafia turnover, see M. Centorrino, Economia assistita dalla mafia (Soveria Mannelli 1995) pp. 101–50. 6  7 

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and services among criminals belonging to different mafia consortia have become quite frequent, albeit respecting the territorial sovereignty of each group. In particular the barter of illicit goods – such as the exchange of heroin for co­caine – has become a routine practice given that it reduces the need to undertake the riskier phase of the economic process in the illicit marketplace, the laundering of dirty money.9 The more frequent interaction among members of different crime groupings has also led to the establishment of stable business partnerships: some of these have been voluntarily en­tered into by both sides, others have been enforced on the weaker group by a more powerful – in terms of either military or political resources – counterpart. As a matter of fact, it has often been through the establishment of business alliances that Southern-Italian mafia con­sortia have entered into a new field of activity. It was, for example, by establishing partner­ ships with certain camorristi and affiliating the most important ones to Cosa Nostra, that the Sicilian ‘men of honor’ were able, in the early 1970s, to enter the business of large-scale to­bacco smuggling. At the beginning of the 1970s – the pentito Antonino Calderone remembers – Naples was a sort of Eldorado of Sicily, because there was already the smuggling of cigarettes. There were already those that worked on drugs, but it was still a small thing. Instead, that of cigarettes was one of the biggest sources of income. Since in Naples the work was very good, the Sicilians have put theii foot there, ousting a bit the Neapolitans.10

As a matter of fact, the practice of organizing inter-regional joint ventures has some impor­tant advantages. First of all, it allows the pooling of capital for the largest investments. In the past, when the mafia families were not wealthy, this practice, which took place mostly within each mafia consortium but also between different criminal groupings, was necessary for the entrance into the wholesale sector of the tobacco and drug markets. It is still used today espe­cially in the narcotics trade, where it facilitates the conclusion of single-shot deals for hun­dreds of kilos, thus minimizing the risk of interception by law enforcement agencies and at the same time spreading the financial burden and the risks among several groups. This trend can be most clearly detected within the Calabrian mafia confederation, where throughout the 1980s two ‘cartels’ of mafia groups

9  This type of barter was first proved in the so-called ‘Iron Tower’ operation which was jointly carried out by Italian and American law enforcement agencies in 1988. Cocaine was sent by the clan headed by Sicilian mafIa boss Gaetano Fidanzati from Latin America to Italy, where it was traded against heroin. The heroin was then exported and distributed in the United States by Sicilian mafia members in cooperation with American La Cosa Nostra affiliates. A similar scheme was more recently set up by the camorra group D’Alessandro. See Ministero dell’Interno, Rapporto annuale sui fenomeno della criminalità organizzata per il 1994 (Roma 1995) pp. 105–10. 10  Commissione Antimafia, Audizione … Antonino Calderone, op. cit., p. 316.



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formed, each of which was able to handle several lots of heroin totaling 500 kg and cargoes of cocaine of up to 300 kg at a time.11 Secondly, the establishment of stable business alliances enables the geographical advan­tages of the different criminal groupings to be exploited. For example, in the second half of the 1970s some Calabrian groups succeeded in entering into co-partnership with the then more advanced Sicilian and Campanian traffickers because they provided safe shelters along the jagged Calabrian coasts for the unloading of cigarettes and drug lots discharged from the big ships passing by in international waters. As a matter of fact, a recent investigation re­vealed that throughout the 1980s some of the major cosche of the province of Reggio Cala­ bria – the groups De-Stefano-Tegano and the lamonte of Reggio Calabria, the Papalia of Platì and the Calabrò of San Luca – were co-partners of the Catanese family of Santapaola in the business involving the importation by sea of bulk amounts of hashish and heroin coming from Lebanon and Turkey, which were unloaded in the port of Saline loniche situated in the territory controlled by the lamonte cosca.12 The best example to demonstrate such a point is, however, represented by the Apulian case. Up to the 1970s, in fact, this Adriatic region was exempt from any consistent and rooted problem of organized crime. Its development in the last quarter of a century was orig­inally prompted by the decision of the Campanian tobacco smugglers to shift the unloading of cigarette boxes from the frequently patrolled Tyrrhenian waters to the relatively safer Adriatic ones. Hence, they moved the fast motor boats used to unload cigarette cartons from large ships from the Campanian to the Apulian coast and started to recruit local gangsters as workers. The colonization of the region by Campanian crime groups enhanced the develop­ment of autochthonous organized crime which initially took place under the aegis of Raffaele Cutolo, then the chief of the ruling coalition of the Campanian crime society, the Nuova Ca­morra Organizzata (NCO). The first Apulian crime association was established in 1981, which was de facto a satellite of the NCO and had to pay Cutolo a 40% share of all illicit pro­ceeds. With the fall of Cutolo in the early 1980s and the internecine war that accompanied it, the process of confluence into the camorra came to a sudden halt, with the exception of only one Apulian province, that of Foggia, whose criminals have long maintained close relation­ships with the largest camorra syndicates. In all the other provinces, autonomous crime groups rose, the most structured and long-lasting being the Sacra Corona Unita (SCU), founded in 1983 by Giuseppe Procura della Repubblica di Reggio Calabria, Direzione Distrettuale Antimafia, Richiesta di ordini di custodia cautelare in carcere nel procedimento contro Morabito Giuseppe + 161 (1993 November 5). 12  Tribunale di Reggio Calabria, Ufficio del Giudice per le Indagini Preliminari, Ordinanza di custodia cautelare in carcere nei confronti di Iamonte Natale + 95 (1993 October 2). 11 

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Rogoli from Mesagne and active especially in the provinces of Brindisi and Lecce. The consolidation of these groups was promoted by ’ndrangheta and to a lesser extent by Cosa Nostra families that, unlike Cutolo’s NCO, preferred securing long­term alliances with steady local syndicates which guaranteed them a financial role in the traf­fi ckings rather than founding their own branches in the region.13 Throughout the last fifteen years, the illicit activities of Apulian crime groups and their ex­ternal financiers have expanded without interruption, favoured by the privileged geographical position of the region, which is separated only by a short sea strip from the coasts of Albania, Greece and former Yugoslavia. As a matter of fact, from the mid-1980s onwards, the fast motor boats owned by Apulian smugglers have been harboured in these countries – first in Albania and now increasingly in Montenegro – whereas the cigarette cartons are no longer transported by easily interceptable ships but are shipped from production areas overland di­rectly to the Albanian and Montenegrin ports. Furthermore, as in other regions, the means, expertise and contacts gained in the tobacco business have also been exploited in other more profitable trades, such as drugs and arms trafficking and, more recently, the smuggling of il­legal immigrants. Whereas this last activity seems to be particularly promising,14 since the late 1980s the Apulian crime groups have also come to hold an important role in international heroin trafficking, due to the outbreak of civil war in Yugoslavia, which compelled traf­fi ckers to abandon the traditional ‘Balkan route’ and to develop new alternative routes.15 The specialization of Apulian syndicates in smuggling operations of a plurality of illegal goods exemplifies the third major advantage provided by the establishment of inter-regional business partnerships: the enhancement of functional differentiation. In the past specializa­tion was largely due to a lack of interest on the part of other groups in a specific activity. Hence, for example, a cluster of Calabrian mafia families located on the Aspromonte together with their branches in Central-North Italy, known as ’ndrangheta della montagna, and carried out most of the ransom kidnappings that have taken place in Italy since the late 1960s, their only ‘competitors’ being the last representatives of Sardinian banditism and some urban gangs. Camorra groups never entered into this field, while Cosa Nostra enacted a ban on kid­nappings in Sicily in the late 1960s; the members of the Corleone family and their closest al­lies organized 13  Ministero dell’Interno, Rapporto annuale sul fenomeno della criminalità organizzata per il 1992 (Roma 1993) pp. 192–208; Arma dei Carabinieri, Comando Generale, Organigramma delle associazioni di tipo mafioso operanti in Puglia, July 1990, and M. Fiasco, Puglia: il crimine. Scenari e strategie (Roma, 1992). 14  Ministero dell’Interno, Relazione semestrale sull’ attività svolta e i risultati conseguiti dalla Direzione Investigativa Antimafia nel secondo semestre del 1995 (Roma 1995). 15  See NNICC, National Narcotics Intelligence Consumers Committee, The NNICC 1993: the Supply of Illicit Drugs to the United States (Washington, 1994 September).



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some kidnappings outside Sicily up to the mid 1970s, but this activity was soon abandoned in favour of more profitable and less risky activities.16 Over the last ten years however, a different type of functional differentiation has emerged, according to which some corporate or individual actors in each mafia consortium are increas­ingly specializing in determined activities and hence provide these services to other units of their mafia system as well as to other criminal associations. For example, the Catania family of Cosa Nostra has allegedly been in charge of the laundering of dirty money belonging not only to several other Sicilian cosche but also to groups of the ’ndrangheta.17 Likewise, the Cuntrera Caruana clan originating in Siculiana village in the Agrigento province has acquired a pivotal role in the transcontinental drugs trade and thanks to its branches in several Euro­pean, Asiatic and North and South American countries it has been able to act as broker for Italian crime groups, enabling them to buy narcotics directly in source countries.18 A recent investigation by the Turin Court has, for example, proved that a ‘cartel’ of seven Calabrian mafia groups – Mazzaferro, Pesce, Ierinò, Cataldo, Barbaro, Morabito and Romola – thanks to the intermediation of Alfonso Caruana, a young heir of the family, residing in Venezuela, were able to buy cocaine in Colombia successfully managing to import over 11 tons of the substance in 8 different shippings.19

2. The Integration Outside the Areas of Origin The ‘horizontal’ integration of Italian organized crime has been strongly fostered by a sharp increase in the geographical mobility of mafia groups and their expansion outside their re­gions of origin. A synthetical account of these two processes will help us to assess their im­pact on the phenomenon under examination. 16  As Tommaso Buscetta points out, the decision to prohibit kidnappings was taken ‘not for humanitarian reasons, but for a sheer calculus of convenience. Kidnappings in fact create a general feeling of hostility on the part of the population towards the kidnappers that is counterproductive if it happens in areas like Sicily where the mafia is traditionally settled. Furthermore, kidnappings determine a higher degree of attention by police forces towards organized crime and also for this reason it is quite inadvisable that kidnappings take place in Sicily’. See Tribunale di Palermo, Ufficio Istruzione Processi Penali, VerbaIi di interrogatorio reso dal collaboratore di giustizia, Tommaso Buscetta (1984), Vol. I, p. 63; see also Tribunale di Marsiglia. Verbali di interrogatorio reso dal collaboratore di giustizia, Antonino Calderone (1987) p. 96. 17  Procura della Repubblica di Catania, Direzione Distrettuale Antimafia, Richiesta per l’applicazione di misure cautelari nei confronti di Cultrera, Felice + 8 (1995 March 19). 18  Direzione Centrale della Polizia Criminale, Indagini sull’organizzazione mafiosa siciliana denominata ‘Cosa Nostra’. Rapporto riepilogativo dell’ attività investigativa svolta su Cuntrera Pasquale ed altri (Roma, 1989 November 9). 19  The last of them, amounting to 5,490 kg, was intercepted by police forces in March 1994 on the outskirts of Turin in a container, shipped from Colombia and unloaded at the port of Genoa. This seizure represents the largest ever made outside production areas. See Tribunale di Torino, Ufficio del Giudice per le Indagini Preliminari, Ordinanza di custodia cautelare in carcere nei confronti di Belfiore Salvatore + altri (1994 June 23).

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From the beginning of the century, and increasingly in the decades following the Second World War, wide settlements of the three major Southern mafia consortia have established themselves in Northern Italy as well as in those foreign countries which were the main desti­nations of emigres from Southern Italy.20 Movement outside the area of origin was not orig­inally determined by the will to promote illicit interests but was largely caused by lack of working opportunities in Italy and by the pressure of antimafia action (especially under the fascist regime). Furthermore, as far as the Northern regions of the country are concerned, the settlements of Southern mafia groups have been consistently favoured by the policy, adopted in 1965, to remove the subjects suspected of belonging to a mafia association from their own region and to impose upon them the obligation to reside in areas different from their own.21 Although this measure was aimed at cutting ties with the mafia environment, it has instead proved to promote the establishment of mafia cells in non-traditional areas and the develop­ment of a network of contacts on the part of Southern mafiosi with the local underworld. On this matter the Parliamentary Antimafia Commission of the XI legislature stated: ‘The im­provident and incautious use of the institute of compulsory residence … has practically spread numerous subjects of unequivocal mafia matrix in many Italian areas (which were already by themselves desirable) and has rooted them in areas which could have otherwise been left im­mune’.22 Since the 1960s, however, the spreading into non-traditional areas has been increasingly fostered by Southem mafia groups for a variety of other reasons. Firstly, fleeing one’s own home town has for a long time allowed mafia members to subtract themselves from the pressure of law enforcement agencies, given the lack of awareness by Northern Italian and foreign law enforcement officials about the dangers of a mafia expansion in their own areas of competence. Going abroad has long been an effective way of evading the criminal charges raised by Italian judicial authorities and to achieve impunity: only recently most European countries have introduced normative provisions on money laundering, whereas the crime of mafia association is still not recognized by the majority of the foreign states.23 The expansion outside the so-called ‘mafia risk’ regions has 20  For a general overview of the international ramification of Italian organized crime, see A. Jamieson, ‘The Transnational Dimension of Italian Organized Crime’, I Transnational Organized Crime (1995) pp. 151–72. 21  For an analysis of the normative concerning the so-called preventive measures of personal and patrimonial type, see P.V. Molinari and U. Papadia, Le misure di prevenzione nella legge fondamentale e nelle leggi antimafia (Milano 1994). 22  Commissione Antimafia, Insediamenti e infiltrazioni di soggetti ed organizzazioni di tipo mafioso in aree non tradizionali (Roma, 1994 January 13) doc. XXIII, n. 11, XI legislature, p. 19. 23  Thus, for example, in the early 1990s the camorra boss, Michele Zaza, was able to live in Menton, France for several years and manage his international traffickings from this location next to the Italian border with no restraint other than being subjected to police supervision, because the French did not recognize an arrest warrant issued by the Italian judicial authorities for the



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also proved to be functional to the pursuit of il­legal activities, bringing mafiosi closer to countries producing both drugs or other illicit com­modities and to the major foreign and domestic consumption markets. Lastly, the laundering and the reinvestment of illicit proceeds has also been enhanced by the ramification in foreign countries and Central-North Italy. The latter, in fact, have a richer and more diversified econ­omy than the Mezzogiorno and therefore provide more numerous and, more profitable invest­ment opportunities and guarantee a lower risk of police detection, not to mention the advantages granted by the lack or leniency of money laundering legislation in many foreign countries.24 Sicilian Cosa Nostra and the Calabrian ’ndrangheta have the widest and most rooted settle­ments abroad. As a matter of fact, the American La Cosa Nostra is itself a filiation of the Si­cilian mafia organization, and up to the 1950s, Sicilian ‘men of honor’ who moved to the United States were automatically admitted into the American organization. Since this prac­tice was stopped due to the growing differences between the two mafia associations, autono­mous cells of the Sicilian Cosa Nostra have been established in the United States, especially on the East Coast and throughout the 1980s they played a major role in the importation of heroin from Sicily and its distribution in the United States.25 Sub-units of Cosa Nostra families – named ‘decine’ – are also known in the Southern German Lander – Baden-Würt­temberg and Bavaria – as well as France, Belgium and several Latin American countries.26 Venezuela has become the headquarters of the Cuntrera Caruana family, the only case of a Sicilian Cosa Nostra cosca that has permanently moved its home seat outside the island. Even more extensive are the foreign branches of the Calabrian ’ndrangheta. There are cells in Germany as well as in Holland, France and the United States, but it is especially in Canada and Australia that the ’ndrangheta has the most developed settlements, consisting of several hundred affiliates that today still act in close cooperation with the home seat in Calabria.27 crime of mafia association. See Assemblée Nationale, Rapport de la Commission d’ Enquête sur les moyens de lutter contre les tentatives de pénétration de la mafia en France (Paris, 1993 January 26) IX legislature. 24  According to the ‘pentito’ Gaspare Mutolo, in 1982, when the Italian Parliament approved a bill aimed at seizing and forfeiting assets of people indicted as mafia members, several Cosa Nostra bosses decided to move their assets into Germany where ‘everything was quiet’. See Commissione Antimafia, Prima Relazione Annuale (Roma 1993) doc. XXIII, n. 9, p. 51. 25  The role of the Sicilian men of honor in the smuggling and distribution of heroin in the United States first emerged in the course of two important police operations carried out jointly in the second half of the 1980s by the Italian and the American law enforcement authorities, named ‘Pizza Connection’ (1984) and ‘Iron Tower’ (1988). 26  Ministero dell’Interno, Rapporto … per il 1992, cit., pp. 166–167; DIA, Proiezioni estere di Cosa Nostra, unpublished report (1993). 27  For a detailed description of the Calabrian mafia settlements in foreign countries as well as in Northern Italy see L. Paoli, ‘An Underestimated Criminal Phenomenon: the Calabrian ’ndrangheta’, 2 European Journal of Crime, Criminal Law and Criminal Justice (1994) pp. 212–238.

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In addition to these offshoots, which were mostly built up prior to the ‘entrepreneurial transformation’, Cosa Nostra, ’ndrangheta, camorra and more recently even the Apulian crime syndicates have established cells in foreign countries to promote their illegal activities, in particular drug trafficking and money laundering. For example a camorra boss, Umberto Ammaturo, spent several years in Peru in order to establish contacts with local drug traf­fi ckers and to personally organize the export of cocaine to Italy, whereas the Sicilian Cosa Nostra sent the chief of the Altofonte family (TP), Francesco De Carlo, to London, in order to set up a distribution point for narcotics and dirty money. Although the amount of reliable information is still scarce, it is certain that in the last five years the former USSR and the Eastern European countries have been a strong attraction to Italian mafia members, given the great opportunities that the transition to democracy and a market economy provide for money laundering, speculations and illegal activities.28 Likewise, representatives and sub-units of all the four major mafia coalitions are nowadays present in Northern Italy.29 Moreover, whole ’ndrangheta families have settled in Lombardy and Piedmont and have managed to re-create – in several cohesive communities of Calabrian immigrants – the same sort of territorial dominion that they impose on their villages and towns of origin. The other three crime clusters have not shown the same propensity to move entire groups outside their traditional areas of influence. The Northern settlements of the Campanian and Apulian organized crime seem to reflect the entrepreneurial attitude of their affiliates and the magmatic and fragmented nature of the two phenomena. In the case of the Sicilian Cosa Nostra, the transfer of no mafia family outside Sicily (with the sole exception of the Cuntrera Caruana) seems to be attributable to a clear strategical choice: in fact, al­though its Northern settlements are quite consistent, they significantly contribute to the over­all business turnover and frequently have prominent positions in each regional context – the Sicilian mafia groups Carollo and Ciulla dominated the Milanese underworld throughout the 1980s – since the 1950s it was decided to maintain them under the direct control of the Sicil­ian home seats. Although cases of violent regulation of business interests and fights for supremacy over a specific territory have occasionally been recorded over the last twenty years, the Northern and foreign branches of Sicilian, Calabrian, Campanian and, to a minor extent, Apulian crime groups seem to have established a relatively peaceful modus vivendi within each geographi­cal area. For an ‘apocalictic’ account of Italian mafia expansion in the former USSR, see C. Sterling, Thieves’ World (London 1994). 29  The last quoted report of the Antimafia Commission contains a detailed summary of the main findings on the infiltration of mafia organizations for each region of Northern and Central Italy. See Commissione Antimafia, Insediamenti … cit. 28 



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Even the shift of the supremacy over Milan and its hinterland from the Sicilian co­sche of the Carollo and Ciulla to a Calabrian ‘cartel’ made up of the Sergi, Papalia, Mazzaferro and Flachi-Trovato families took place in the second half of the 1980s with no bloodshed, after the former were targeted and consistently weakened by several ground­breaking judicial investigations (usually referred as the ‘Duomo connection trial ‘). As a matter of fact, outside the regions with a more deeply rooted mafia tradition, all the major Southern syndicates seem to be tangled in a thick network of illicit businesses and ex­changes of different kinds of services, which none has as interest in endangering or breaking. According to the findings of a recent mafia investigation coordinated by the Milan Prosecu­tor’s Office, for example, one of the most powerful Calabrian groups operating in Lombardy; the Sergi, detained permanent business relationships, acting interchangeably as supplier and buyer of drugs with the following counterparts: some Turkish traffickers as well as repre­sentatives of the Colombian Cali cartel; the two major Cosa Nostra branches operating in Milan, the Carollo and the Ciulla families; the Milanese segment of the Catania gang ‘Cur­soti’ headed by Jimmy Miano; several Calabrian families and subdivisions as well as many inoependent operators of different geographical origin. Although the Sergi group did not hesitate to sanction attacks on its honor or the non-observance of agreements with drastic measures, most of the transactions in question were carried out peacefully and without hav­ing to resort to physical violence.30 In the same way, the applications for preventive measures of arrest vis-a-vis the adherents of the Calabrian locale run jointly by Franco Coco Trovato and Giuseppe Flachi showed that the group in question enjoyed close business relations with a vast number of criminal groups and associations in the narcotic drug trade. In particular, through one of its high ranking members, Antonio Schettini, of Neapolitan origin, it maintained stable business contacts with the coalition that had supremacy within the camorra galaxy since the early 1980s, named ‘Nuova Famiglia’.31 Additionally, the Flachi-Trovato syndicate had subscribed to a pact of cooperation and mutual support with two Catanese gangs acting in the Milanese area whose headquarters were located in a carport at the outskirts of Milan. As a mafia turncoat puts it:

30  Tribunale di Milano, Ufficio del Giudice per le Indagini Preliminari, Ordinanza di custodia cautelare in carcere nei confronti di Agil Fuat + 164 (1993 October 2). 31  Procura della Repubblica di Milano, Direzione Distrettuale Antimafia, Richiesta di ordini di custodia cautelare in carcere nel procedimento contro Flachi Giuseppe + 138 (1993 June 7); Tribunale di Milano, Ufficio del Giudice per le Indagini Preliminari, Ordinanza di custodia cautelare in carcere nei confronti di Flachi Giuseppe + 207 (1994 May 27).

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letizia paoli … around the Autoparco an aggregation was established, a true alliance among several groups, several narcotics trafficking organizations, composed both of Sicilians and Ca­labrians. I want to refer to the following organizations:



– that of the Catanesi headed by Jimmy Miano; – that of the Catanesi of Turi Cappello (…); – that of the Calabrians headed by Franco Coco, Giuseppe Flachi and Antonio Schet­tini (even though this last is Neapolitan). These last, through the relationships main­tained by Schettini, exchanged favours with a Neapolitan organization. These three alliances were allied (sic!) in a close way in the area of Milan and its surroundings, so far that we shared every lot of drug that arrived (either cocaine or her­oin) and decided which homicides to carry out, to protect our common interests.32

Around this syndicate gravitated a plurality of other small and large organizations of differ­ent geographical origin with which the former three maintained looser ties: among them there were the other major Calabrian ‘locali’, the Carollo and Ciulla Cosa Nostra families, as well as several autochthonous urban gangs. According to the same ‘Justice collaborator’, all these crime associations formed a ‘“federation” of groups which had common interests and mu­tually helped each other in the control and the dominion of the [Milanese area] … respected each other and made coalitions against common enemies, capable of upsetting the consoli­dated and agreed pacts’.33 Though such formalized agreements have not yet emerged among the international branch­es of the Italian mafia consortia, long term business relations and co-partnerships among members and units of different regional consortia represent a diffuse practice even in the in­ternational sphere. The role played by some mafia actors located abroad in the import of il­licit goods into Italy on behalf of different crime groups has already been mentioned en passant several times. Moreover, several cases of international laundering and reinvestment schemes jointly run by families belonging to the same mafia confederation as well as groups associated with different ones have been proved. In a major case discovered by the Genoa Prosecutor’s Office, for example, important Sicilian and Campanian mafia families jointly in­vested hundreds of billions of lire in shares and real estates on the French and Italian Ri­viera.34 The intensification of relationships and trades among the adherents of the major crime consortia has implied, at least outside the ‘mafia risk’ regions, a weakening of the traditional requirements of territorial roots for the affiliation 32  Tribunale di Milano, Ufficio del Giudice per le Indagini Preliminari, Ordinanza di custodia cautelare in carcere nei confronti di Di Modica Luigi + 78 (1994 October 3) pp. 422–23. 33  Ibidem, p. 421. 34  Ministero dell’Interno, Rapporto … per il 1993, cit., p. 201.



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of new members. As a matter of fact, it seems to be a general rule that the more one goes away from the traditional areas of origin, where each mafia group still claims to exercise its sovereignty over a specific territory and where even members of neighbouring villages or quarters are regarded as potential rivals, the looser the territorial ties become. A confirmation of this tendency can be found in the com­parison between the affiliation rules of the Sicilian mafia organization and those of its Ameri­can filiation, La Cosa Nostra. The families of the former group recruit their affiliates largely among the men residing in their own quarter or village, and authorization has to be requested from the competent family chief whenever a cosca wants to recruit a man living in another territory. The American La Cosa Nostra, on the other hand, has since the 1920s, admitted not only men of Sicilian origin but any male coming from a Southern-Italian region. This trend can also be seen at work among the contemporary Northern and foreign settle­ments of the major crime consortia. For example, of the 164 men indicted to belong to the Calabrian mafia association headed by Giuseppe Mazzaferro and active in Milan, only 94 were born in the Reggio Calabria province. To this, it has to be added that 14 other subjects, though born in Northern and Central regions or abroad, are evidently sons or close relatives of known ’ndranghetisti, accounting for a total of 108 people, corresponding to 65.9% of the whole group. It is striking, however, that about one-third of the alleged adherents of the Maz­zaferro cosca do not come from the Reggio Calabria province: 18 were born in the rest of the region (representing 11 % of the total), 28 men in Sicily (17.1 %), and 10 in other regions of the country. As a matter of fact, the lack of Calabrian origins does not even seem to represent an obstacle to the attainment of ruling positions. In fact, of the 35 members of the above clan who are accused of having played such roles, 4 are of Sicilian origin, 7 come from the Catan­zaro province and even Giuseppe Mazzaferro’s right-hand man comes from Abruzzo.35

3. The Processes of Imitation and of Vertical Integration The intensification of clandestine trades and business partnerships over the last quarter of a century between members of the various criminal associations has also enhanced the circula­tion of organizational formulas, rituals and symbolic codes among the different Italian mafia consortia and has promoted a process of vertical integration among them.

35  Likewise, as we have already seen, the man that covers the third ranking position inside the Flachi-Trovato grouping is the Neapolitan Antonio Schettini, whereas another Calabrian mafia family also active in Lombardy, run by the Paviglianiti brothers, also lists several members of Campanian origin. See Tribunale di Milano, Ordinanza … Flachi Giuseppe + 207, cit., pp. 517–20.

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Graph 1. Territorial origin of the 164 alleged members of the clan headed by Giuseppe Mazzaferro born in other regions 10 born in Sicily 28

born in the rest of Calabria 18

born in the reggio Calabria province 94

born outside Calabria but belonging to mafia families 14

Source: Tribunale di Milano, Ufficio del Giudice per le Indagini Prelirninari, Ordinanza di custodia cautelare in carcere nei confronti di Abys Adriano + 394 (1994 June 6).

It is well known, for example, that Raffaele Cutolo set up the Nuova Camorra Organizzata (NCO), a coalition of juvenile and urban gangs that held the supremacy within the camorra galaxy for almost a decade from the early 1970s onwards, on the model of the ’ndrangheta, copying its rules, rituals and ranks.36 The influence exercised by the NCO and the ’ndrangheta on the development and consolidation of Apulian crime groupings has been even stronger. The first attempt to organize the Apulian underworld took place under the direction of Raffaele Cutolo himself, when he personally ‘baptized’ about forty Apulian gangsters in a hotel in Lucera in the Foggia province in 1979. Likewise, the first autochthonous association – the Nuova Grande Camorra Pugliese – created in 1981, was shaped on the model of the NCO and was de facto a ramification of the later, so far it has ended up being included by the NCO, assuming the label of Nuova Camorra Pugliese.37 In the early 1980s the ’ndrangheta succeeded 36 Tribunale di Reggio Calabria, Ufficio Istruzione Processi Penali, Ordinanza sentenza di rinvio a giudizio contro Albanese Mario + 190 (1988) p. 189 ff; Tribunale di Vibo Valentia, Ufficio Istruzione Processi Penali, Ordinanza-sentenza di rinvio a giudizio contro Mancuso Francesco + 200 (1985). 37 See sources quoted in note 12.



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Cutolo’s coalition when it succumbed in the fight against the rival grouping of the ‘Nuova Famiglia’. The founder of the Sacra Corona Unita (SCU), Giuseppe Rogoli, was ritually affiliated to the Calabrian mafia confederation in 1983, and the new organization faithfully imitates the ’ndrangheta in its internal rules and hierarchies. Similarly, the superordinate body of coordination which was established in 1991 among Calabrian mafia families closely resembles Cosa Nostra’s Commission of the province of Palermo and the Regional Commission, created respectively in the late 1950s and mid­-1970s.38 The assumption of the Sicilian association as a source of inspiration is also ex­pressed by the new name that the ’ndrangheta has allegedly assumed – according to some Justice collaborators – since the establishment of the collegial body: Cosa Nuova.39 The intensification of economic relationships and exchanges among the major mafia groupings has not only fostered the circulation of organizational formulas and symbolic codes among them. It has also led to the establishment of long-term, unconditional ties which extend beyond the economic sphere and which may be seen as the first stages of a process of vertical integration. As a matter of fact, the involvement of Sicilian mafiosi in tobacco smuggling was formalized in the 1970s with the affiliation of several camorra bosses to Cosa Nostra and with the creation of two Cosa Nostra families in the Neapolitan area.40 Likewise, it has long been known that the most influential representatives of the ’ndrangheta are ritually affiliated to the Sicilian organization and entire families in Calabria are as­sociated with Cosa Nostra. According to Tommaso Buscetta, these ties were originally established in the mid-1950s on the initiative of Albert Anastasia, the Calabrian boss who then headed the Gambino family in New York and who wanted to ensure a peaceful relation­ship between the two

38  As is well known, the former one was modeled on the analogous body set up by the American Cosa Nostra at the end of the 1920s under the impulse of the American mafia boss Joe Bonanno. It is composed of the 15 chiefs of the so-called ‘mandamenti’, intermediate aggregation units of about three neighbouring mafia families of the Palermo province. The latter one – called also ‘Regione ‘or ‘Interprovincial Commission’ – was created on the proposal of Pippo Calderone, who was then head of the Catania family, to set up a forum for the discussion and settlement of disputes among families of different provinces and for the planning of the most important economic and military activities. It gathers the representatives of six Cosa Nostra’s provinces (this excluding the provinces of Messina, Siracusa and Ragusa, where Cosa Nostra has no branches). See P. Arlacchi, Addio …, cit., pp. 60–74; Stajano, op. cit., pp. 40–43; Commissione Antimafia, Audizione … Antonino Calderone, cit., pp. 279–80. 39  Procura della Repubblica di Reggio Calabria, Direzione Distrettuale Antimafia, Richiesta di ordini di custodia cautelare in carcere e di contestuale rinvio a giudizio nel procedimento contro Condello Pasquale + 477 (1995 July) pp. 4452–4519. 40  C. Stajano, ed., Mafia: l’atto d’accusa dei giudici di Palermo, selections of Tribunale di Palermo, Ufficio Istruzione Processi Penali, Ordinanza-sentenza emessa nel procedimento pénale contro Abbate Giovanni + 706 (Roma, [ 1986]1992) pp. 90–96.

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Southern Italian organizations.41 They were, however, almost totally severed by the death of Anastasia and by the outbreak of the so-called ‘first mafia war’ within the ranks of the Sicilian Cosa Nostra in the early 1960s. This practice was revitalized in the late 1970s when the occasions of interaction – and hence, of potential conflicts – be­tween the adherents to two different mafia consortia were made more frequent by the wide­ning of the scope of their action.42 An important confirmation of the existence of close links between the two powerful mafia confederations has emerged from the investigations carried out into the killing of Antonio Scopelliti, the Substitute Attorney General of the Supreme Court, which occurred in a small outlying ward of Reggio Calabria in August 1991. Although the first-degree murder trial is now taking place in the Reggio Calabria Court, the Prosecutor’s support the theory that the murder of Scopelliti, who was to be the Prosecutor in the revision of the first-degree sentence on the Palermo’s maxi-processo, was the reward asked by the Sicilian Mafia for its own paci­fying intervention in the bloody conflict that had opposed the major mafia families of the city of Reggio Calabria over a five-year period, with a death toll of over 500.43 As a matter of fact, the Sicilian mafia organization allegedly played a critical role in putting an end to the war and in the subsequent founding of a superordinate body among the ’ndrangheta families. According to a ‘pentito’, for example, ‘the role of Cosa Nostra was decisive for the conclu­sion of the war,44 and the highest chiefs were personally involved in the Calabrian peace negotiations. Even the emulation of the ’ndrangheta organization on the part of both the Nuova Camorra Organizzata and the Sacra Corona Unita has been accompanied – and indeed made possible, given the secrecy that hides the composition and the internal articulation of mafia associ­ations to external observers – by the affiliation of both Campanian and Apulian gangsters to the Calabrian consortium. Not only Giuseppe Rogoli but also several other high ranking members of the SCU, as well as other prominent criminal figures in Apulian crime society, are known to be ritually affiliated to the ’ndrangheta.45 Analogously, according to a sentence pronounced by the Vibo Valentia Court, ‘there was a “ndranghetista P. Arlacchi, Addio … cit., pp. 53–55. Procura della Repubblica di Reggio Calabria, Richiesta … Condello Pasquale + 477, cit., pp. 4750 ff. Commissione Antimafia, Audizione del collaboratore di giustizia Leonardo Messina (Roma, 1992 December 4), XI legislature, pp. 541–542 and Audizione del Direttore della DIA, Gianni De Gennaro, sul fenomeno della ’ndrangheta (Roma, 1994 January 19) XI legislature, p. 3505. 43  Tribunale di Reggio Calabria, Ufficio del Giudice per le Indagini Preliminari, Ordinanza di custodia cautelare in carcere nei confronti di Riina Salvatore + 20 (1993 April 20). See also A. Prestifilippo, Scopelliti. Morte di un giudice solo (Cosenza 1995). 44  Procura della Repubblica di Reggio Calabria, Richiesta … Condello Pasquale + 477, cit., pp. 5067, 4461–74. 45  Tribunale di Milano, Ordinanza … Flachi Giuseppe + 207, cit.; Commissione Parlamentare, Audizione del collaboratore di giustizia Salvatore Annacondia (Roma, 1993 July 30) XI legislature. 41  42 



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derivation of Neapolitan Cutolo, whose career started with a baptism and then continued with promotions up the hier­archy decided by a Calabrian trio (Piromalli, Mammoliti, De Stefano)’.46 Throughout his rise, Cutolo enjoyed the support of the major ’ndrangheta bosses of the time, running com­mon business activities and exchanging favours of any type with them. Since the early 1970s he had a particularly close relationship with Paolo De Stefano, who had became the undis­puted mafia chief of the whole city of Reggio Calabria at the end of the so-called ‘first Cala­brian mafia war’ (1974–76). As a matter of fact, it was Cutolo that sealed De Stefano’s rise to power, by organizing the assassination of Domenico Tripodo, the former leader of the city mafia, in the Neapolitan prison of Poggioreale.47 According to the Investigating Judges of the first Calabrian maxiprocesso, ‘the Cutolo-De Stefano connection was the main feature of organized crime throughout Southern Italy for a long time (1977–1983), and had to do with all the main crimes like assassinations, drug trafficking and kidnappings.48 At least as far as Cosa Nostra and the ’ndrangheta are concerned, the process of vertical in­tegration has gone so far that there are grounds to hypothesize a partial fusion between the two mafia organizations. The elements supporting this thesis, which would have been quickly discarded as totally unfounded only a few years ago, continue to grow and have been independently provided by several former members of both Cosa Nostra and the ’ndrangheta, now cooperating with the judiciary. It was maintained for the first time in 1992 by Leonardo Messina, a former capo decina of the Sicilian family of San Cataldo, that ‘Cosa Nostra and ’ndrangheta are the same thing’.49 In his tum, Calogero Marceno, a Sicilian adherent of the Calabrian Mazzaferro clan operating in Lombardy, pointed out several cases of Sicilian ‘men of honor’ who shifted from Cosa Nostra to the ’ndrangheta, once they moved to Lom­bardy.50 Additionally, Francesco Fonti, a Justice collaborator of the Calabrian ’ndrangheta, says that the proposal to establish an inter-regional commission between Cosa Nostra and the ’ndrangheta dates back to at least 1985, although he admits that he does not know whether this project was realized or not.51 As a matter of fact, according to Leonardo Messina, the process of vertical integration has not involved only the ’ndrangheta but has brought all the other Tribunale di Vibo Valentia, Ordinanza … Mancuso Francesco + 200, cit., p. 182. Procura della Repubblica di Reggio Calabria, Richiesta … Condello Pasquale + 477, cit., pp. 276–547. 48  Tribunale di Reggio Calabria, Ordinanza … Albanese Mario + 190, cit., p. 187. 49  SCO, Servizio Centrale Operativo, Direzione Centrale della Polizia Criminale, Dichiarazioni rese da Leonardo Messina (1992), p. 27. 50  Tribunale di Milano, Ufficio del Giudice per le Indagini Preliminari, Ordinanza di custodia cautelare in carcere nei confronti di Abys Adriano + 394 (1994 June 6). 51  Procura della Repubblica di Reggio Calabria, Richiesta … Condello Pasquale + 477, cit., pp. 5023–24. 46  47 

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major crime consortia under the aegis of Cosa Nostra. In a hearing in front of the Parliamentary Antimafia Commission he stated that there are no other organizations in Italy outside Cosa Nostra. All the others are words (dicitura), but the structure is always that of Cosa Nostra: call them sacra corona unita, ’ndrangheta, camorra and so on, these are only nicknames, but the structure is Cosa Nostra.52

According to him, there are regional bodies of coordination in Campania, Calabria, Apulia, Piedmont, Lombardy and Tuscany, each of which elects a national representative. The gathering of this last group gives life to a national board that is in charge of taking the most important decisions affecting the whole of Italy’s criminal society. Messina’s statements have not yet been confirmed by any other Justice collaborator. Al­though his cooperation with justice has otherwise been regarded as truthful by law enforce­ment agencies, it is quite possible that his knowledge may have been distorted by the inefficient circulation of information inside Cosa Nostra resulting from secrecy or by the somewhat peripheral position that he maintained inside the mafia organization. Whereas the definitive assessment of Messina’s declarations cannot but take place in the future, his words should not be overestimated and rejected as false. It is important to avoid a misunderstanding of the meaning and the scope of the process of vertical integration which has been discussed. The thesis supported here is in fact that the development of such a trend does not imply a centralization of the decision-making power on all the relevant issues in the hands of a few. Italian organized crime is far from having become a centralized Moloch. Whereas the definition of long-term strategies may be accomplished by the regional bodies of coordination or even in gatherings of the most influential representatives of the Italian criminal consortia, the freedom of each single corporate unit is still quite wide. In this respect it is important to remember that with the exception of the Sacra Corona Unita, whose devel­opment has been shaped by Giuseppe Rogoli’s charismatic power, the other three major con­sortia rose as segmentary societies, lacking superordinate bodies of coordination and composed of units that, though sharing the same symbolic codes and the same organizational pattern, enjoyed a very high degree of autonomy. Recalling the early post-war period, the most charismatic of Sicilian ‘pentiti’ states: We were more isolated. It was not at all granted that we in Palermo knew what the family of Partinico thought about Scelba, Mattarella or Giuliano, even though Partinico is only 20 Km away from Palermo. (…) There was no way to control

52 

Commissione Antimafia, Audizione … Leonardo Messina, cit., p. 527.



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rapidly what hap­pened in another province. There was much more autonomy. Every family was, so to say, on its own.53

In a similar way Antonio Zagari, a Justice collaborator from the ranks of the Calabrian ’ndrangheta, which has managed to maintain a horizontal conformation for mucht longer, points out that: ‘the structure of the ’ndrangheta is substantially a federation of locali (or cells) so that the chiefs and the members of the locali themselves know each other recipro­cally (especially in close territorial areas) and do not have influence on the territory of the other’.54 Whereas Cosa Nostra deviated significantly from the principle of segmentary differentia­tion in the late 1950s, with the establishment of the Commission of the Province of Palermo, in the other two regions it has lasted much longer. Only at the beginning of the present de­cade, as we have seen, was a superordinate collegial body established in Calabria, whereas in Campania the camorra clans have not yet felt the need or been able to implement any institu­tionalized mechanism of coordination.55 Even in Apulia, the Sacra Corona Unita represents only about a third of the crime groups active in the region and the authority of its founder, Giuseppe Rogoli, who has been detained since the early 1980s, has been frequently circum­vented or even openly challenged by his lieutenants. Moreover, even in Cosa Nostra, notwithstanding the domination of the Corloenesi coali­tion over the last fifteen years, the autonomy of the systemic units is still considerable. In­deed, it is worth making some specific observations about the Sicilian case, which presents the most advanced tendency towards centralization and may therefore provide some interest­ing hints about the process of vertical integration at the national level. First of all, it must be remembered that only two limited sets of competencies were originally attributed to the first body coordinating the 55 Cosa Nostra families active in the Palermo province: 1) the settle­ment of the disputes among Cosa Nostra families and members, and the sanctioning of the non-respect of some basic rules; and 2) the regulation of the use of violence.56 It is true that from the early 1980s the Provincial Commission and its homologous at the regional level have been endowed with other competencies and have become a tool in Toto Riina’s hands with which to consolidate his personal rulership over the entire Cosa Nostra. He has in fact, filled all the positions of commissioners with men whom he trusts, whereas the principle of collegiality has been emptied of any substantive meaning: ‘with the incredible power gained by the Corleonesi and their allies’ – Tommaso Buscetta notes – ‘the traditional organizational structures have a purely formal value … P. Arlacchi, Addio … cit., p. 43. Tribunale di Milano, Ordinanza … Abys Adriano + 394, cit., p. 163. 55  Ministero dell’Interno, Rapporto … per il 1992, cit., pp. 178–91; Ministero dell’Interno, Rapporto … per il 1993, cit., pp. 267–92; Ministero dell’Interno, Rapporto … per il 1994, cit., pp. 87–110. 56  C. Stajano, Mafia … cit. pp. 40–43; P. Arlacchi, Addio … cit., pp. 60–74. 53  54 

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the decisions are taken before … and the commission is nothing else but the faithful executor of the orders of those’.57 In order to strengthen his control even outside the Palermo province, Riina then introduced a new position in Cosa Nostra hierarchy: that of the ‘ambassador’, a direct representative of the Corleonesi in the different provincial contexts. The ambassador is unbound by hierarchies and may personally contact the ‘men of honor’ of single families in order to charge them with assignments even without informing their representative. As Leonardo Messina, the for­mer mafia member of the traditionalist family of San Cataldo, puts it, ‘all these “ambassa­dors” have formed a sort of network, being linked to each other and all together to the “Corleonesi”, who, through this mechanism, have taken possession of the whole system’.58 Nonetheless, even Riina’s power and the control that he exercises over Cosa Nostra are far from being unlimited. A tight, unavoidable restriction is first of all provided by the presence of ‘stranglings’ in the information fluxes within the association: ‘the circulation of informa­tion within the organization is very limited’,59 Leonardo Messina maintains, while Tommaso Buscetta notes: Cosa Nostra is full of secrets. There is no man of honor that can recount the course of an event from A to Z, unless he has lived it personally (…) Even Toto Riina, who knows everything about the most secret things, may have some difficulty in this field.60

The practice of fragmentation of information is imposed by the need to protect the inner core of Cosa Nostra from the public view and particularly from the attention of law enforcement bodies.As a matter of fact, over the last decade Cosa Nostra has been obliged to increase its secrecy to counterbalance the weakening of its popular legitimation, by expanding the frag­mentation of information and by introducing several new devices aimed at improving the protection of its core. ‘The “compartimentalization”, that is the limitation of the circulation of news within Cosa Nostra’ – Totò Cancemi maintains – ’is a phenomenon that has pro­gressively become more marked in the “corleonese” period, consistent with the strategy of power concentration pursued by Salvatore Riina’.61 Furthermore, in Cosa Nostra the liberty of enterprise has always been recognized for each affiliate. Every ‘man of honor’ has the right to make legal, and to a large extent even illegal, businesses independently and to freely choose Tribunale di Palermo, Verbali … Tommaso Buscetta, Vol. I, pp. 98–99; 31; Vol. II, p. 11. See, Dichiarazioni … Leonardo Messina, cit., pp. 42; 4–5. 59  Ibidem, p. 45. 60  P. Arlacchi, Addio … cit. pp. 85–87. 61  Procura della Repubblica di Palermo, Direzione Distrettuale Antimafia. Memoria depositata dal pubblico ministero nel procedimento pénale n. 3538/94, instaurato nei confronti di Andreotti Giulio (1995) Vol. III p. 75. 57  58 



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his partners among members of his own mafia family as well as those of other families or even people that are unassociated with Cosa Nos­tra. Nor can he be forced to reveal his contacts to other members and to divide the profits with them. It is true that the most relevant businesses tend to be controlled by the family chiefs and their profits are divided among the family members. Nonetheless, even nowadays under Riina’s dominion, the decisions concerning investments in illicit as well as licit activ­ities are taken by a plurality of members and at a plurality of levels and the degree of market freedom of the individual and of the single mafia family is very wide. The powers of the two Cosa Nostra commissions in the economic sphere are still quite limited. Originally their competence was restricted to the enforcement of the prohibition on some activities such as loansharking, prostitution and kidnappings. Furthermore, since they had no autonomous administrative staff, they had to rely totally on the willingness of the single capi famiglia to enforce their rulings. For example, even in the late 1970s the two Commissions were not able to prevent or sanction several kidnappings on the part of the Cor­leonesi.62 Over the years, their intervention in economic matters has become more incisive, ranging from coordination to discipline tasks. Throughout the 1970s the collection of money on the part of the Palermo Provincial Commission from several families and influential mem­bers allowed Cosa Nostra to start transactions in the oligopolistic segment of the drug market that no single mafioso could have even dared to project. In the course of that same decade, the same superordinate body effectively disciplined tobacco smuggling, jointly run by Sicil­ians and Neapolitans, by setting up shifts for the landing of cigarette cartons from the ships dropping anchor in Tyrrhenian waters.63 It has been, however, only in the field of public pro­curement that the planning and the management of Cosa Nostra action has been centralized and entrusted by Toto Riina to a delegate of his, Angelo Siino from San Giuseppe Jato.64 In all other sectors, the investment decisions are largely taken either by single affiliates or by mafia families, who are left free to choose whether or not to follow the Commissions advice. Even in the other three mafia consortia, although the individual liberty of enterprise is more limited than in Cosa Nostra, each corporate unit enjoys a high degree of autonomy in the planning and execution of its own investments. Hence, none of the four mafia consortia shows any consistent pattern of centralized action in the economic sphere. Even the speciali­zation in a certain activity on the part of some mafia groups seems to have been more the re­sult C. Stajano. Mafia … cit., pp. 75–79. Ibidem, p. 91. 64  Tribunale di Palermo, Ufficio del Giudice per le Indagini Preliminari, Ordinanza di custodia cautelare in carcere nei confronti di Morici Serafino + 4 (1991 July 9) and Idem. Ordinanza di custodia cautelare in carcere nei confronti di Riina Salvatore + 24 (1993 May 18). 62  63 

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of haphazard choices or for geographic reasons than as the result of a rationally planned strategy. In addition to the judicial functions, the only area of competence that has been reserved to the Provincial Commission of Cosa Nostra since it was founded is the execution of homicides and, in particular, the elimination of members of the police force, magistrates, politicians, journalists and lawyers, because such killings could provoke retaliations from the government or from the victim’s colleagues.65 Likewise, the regulation of violence, both internal and external, has been the main function entrusted to the new Calabrian superordinate body, termed ‘camera di canalizzazione’. Although the last twenty years of Cosa Nostra history have recorded some blatant violations of the Commissions’ exclusive competence,66 it is in these matters that the tendency towards the centralization of decisions has consistently manifested itself in all the four mafia consortia. Hence it is only this sphere, which could be loosely termed the political one and which could possibly result in wide-ranging negative consequences for the whole of the mafia community, that may become subject to a regime of collegial decision-making or at least of preventive warning among the leaders of the crime confederations. A final consideration on this matter may be considered: the principle of collegiality is likely to be formally stated and to be de facto discarded, much like what happened within the Sicilian confederation, even at the inter-regional level. Such an evolution is, first of all, im­plicit in the inefficiencies and the slowness of the decision-making process typically associ­ated with collegial bodies: ‘collegiality’ – Max Weber wrote – ‘almost inevitably involves obstacles to precise, clear, and above all, rapid decisions’67 and where collegial bodies have executive authority, the tendency is for the position of the leading members to become sub­stantively and even formally pre-eminent, as the rise of Toto Riina’s monocratic leadership over the last fifteen years proves with great clarity.

65  Procura della Repubblica di Palermo, Direzione Distrettuale Antimafia, Richiesta di applicazione di misure cautelari contro Abbate Luigi + 87 (1993 December 23) pp. 66–69. 66  Investigations carried out by the judiciary have shown that the murders of Carabinieri Colonel Giuseppe Russo (20.7.77), the Palermo Christian Democrat party secretary Michele Reina (9.3.78), Judge Cesare Terranova (25.9.79) and Carabinieri Captain Emanuele Basile (4.5.80) were all planned quite autonomously by the Corleonesi wing without either consulting or warning the Provincial or the Regional Commission. In one particular case, the assassination of Judge Terranova was organized by Luciano Liggio in such a way as to divert inquiries to the mafia head of Riesi, Giuseppe Di Cristina, for whom the magistrate had already issued a warrant for arrest. Soon after, just to show his independence from the mafia authority, one of the opposing bosses, Salvatore Inzerillo, had the Public Prosecutor Gaetano Costa killed (6.8.80), because he had issued warrants of arrest for several of his group’s members. See C. Stajano, Mafia …, cit., pp. 18–26; Tribunale di Palermo, Verbali … Tommaso Buscetta, Vol. I, pp. 31–5. 67  M. Weber, Economy and Society, edited by G. Roth and C. Wittich (Berkeley and Los Angeles, 1978 [Tübingen, 1922]) p. 277.



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The establishment of inter-regional collegial bodies of coordination is moreover biased by a founding flaw: the inequality among the concurrents in terms of economic, political and military resources. Whereas there are no fixed hierarchies among the single corporate units of each crime consortium, no formal equality exists in the relationships among Cosa Nostra, the ’ndrangheta, the camorra and the Sacra Corona Unita. The actual existence of national super­ordinate bodies is still a matter of speculation. It seems, however, that the process of vertical integration within Italian organized crime cannot but proceed under the push of one or two leading players who deem it necessary and convenient to subject the others to their rule.68

4. Blurred Boundaries between Organized Crime and White Collar Crime It is not only the four major crime consortia that have undergone a process of horizontal and vertical integration over the last two decades. Albeit with varying degrees, the trend towards the unification of the Italian crime scene has involved other, apparently more legitimate, ac­tors that occasionally step into it. Crook financiers, companies pursuing their own profits in disregard of state laws, centres of illicit lobbying, corrupt politicians and sectors of State in­stitutions are often found cooperating with members of mafia syndicates or accomplishing the same type of unlawful actions. The areas of superimposition have become so large that, from an operational point of view, it seems often hardly possible to draw a distinction be­tween organized crime and white-collar crime.69 In this respect, two main patterns may be distinguished: – a growing interaction between the major organized crime groups of Italian Mezzogiorno with representatives of the conceptual area of white collar crime in its broader meaning;

68  Not by chance, according to the mafia turncoat Messina in 1992, the year when he started to cooperate with the judiciary, the positions of chief and underchief of the national commission were detained respectively by Toto Riina, for a long time the unchallenged dominus of the whole Sicilian mafia association, and Francesco ‘Piddu’ Madonia from Vallelunga (CL), his right-hand man within Cosa Nostra regional body. See Commissione Antimafia, Audizione … Leonardo Messina, cit., pp. 523; 527–28; SCO, Dichiarazioni … Leonardo Messina, cit., passim. 69  The growing similarities between the actions of organized crime and white-collar crime players does not rule out the possibility – or indeed the need – to make a distinction between the two in terms of time and patterns of development, organizational principles, methods of securing the loyalty of one’s own members. In this respect, see L. Paoli, Mafia Associations as Secret Societies. The Case of Sicilian Cosa Nostra and Calabrian ’Ndrangheta Families, Ph.D. thesis, Firenze, European University Institute.

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– the independent development and employment by both types of criminal of similar illegal or shadowy forms of intervention in legal markets and in the political system. It is primarily in the economic sphere that both patterns can be seen at their best. In fact, since the beginning of the current decade a wide-ranging series of investigations have proved that in numerous and relevant areas of the Italian economy similar illegal methods have been implemented by firms committing economic crimes and mafia enterprises, with the frequent collusion of politicians and public officials and the conclusion of secret pacts among the dif­ferent parties. Over the last forty years, for instance, there has been a considerable increase in the interac­tion between organized crime groups and a specific type of economic crime – financial crime – due to the incapability of the former to consistently launder money originating from illicit businesses and therefore to their need to rely on institutions and persons involved in econ­omic crime. Spanning the 1970s and the 1980s for example, Roberto Calvi’s Banco Ambro­siano laundered and invested the proceeds from the international drug-trafficking operations of the strongest clans of the Sicilian Cosa Nostra, in just the same way as the financier Mi­chele Sindona had previously laundered the money of the families which were defeated in the mafia war of the early 1980s.70As Francesco Marino Mannoia, a mafioso now collaborating with the judges, put it: ‘Salvatore Inzerillo and Stefano Bontade had Sindona, the others [i.e., the Corleonesi] had Calvi’.71 Other examples are the agricultural frauds against the European Community and the trade in illegal arms. At the end of a thorough study on EC agricultural frauds, Nikos Passas and David Nelken came to the conclusion that ‘the distinction between organized crime and white-collar crime is hard to sustain on both theoretical and empirical ground’.72 Their con­siderations have since been confmned by judicial investigations. In fact in 1993 the owner of largest agricultural conglomerate of the whole Mezzogiorno, Pasquale Casillo, was arrested on a charge of acting as the front-man of Carmine Alfieri, the most powerful chief of the Campanian ‘Nuova Famiglia’, and of having committed multi-billion Lira frauds against the European Union on his behalf.73 70  See L. Paoli, ‘Criminalità organizzata e finanza internazionale’, 34 Rassegna Italiana di Sociologia (1993) pp. 391–423; 1995, and Idem, ‘An Investigation into the Underestimation of the Relations between Organized Crime and Economic Crime’, 23 Crime Law and Social Change (1995) pp. 345–65. See also M. Punch, ‘Bandit Banks: Financial Services and Organized Crime’, 9 Journal of Contemporary Criminal Justice (1993) pp. 175–96. 71  F.M. Marmoia, ‘Interrogation released to the Italian judges on July 15’, as reported in La Repubblica (1991 July 28) p. 9. 72  N. Passas and D. Nelken, ‘The Thin Line between Legitimate and Criminal Enterprises: Subsidy Frauds in the European Community’, 19 Crime, Law and Social Change (1993) pp. 223–244. 73  Although the trial is still pending, this reconstruction has been considerably strengthened by the Justice cooperation by both Alfieri and Casillo that have provided hundreds of pieces of



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The analysis of the recent evolution of the arms market also shows that, besides their tradi­tional involvement in the retail sale section, Italy’s most important criminal coalitions are in­creasingly succeeding in penetrating the ‘wholesale’ sector of international arms trafficking, participating in sizable and highly profitable transactions, doing business with foreign crimi­nal groups, economic criminals and the political-military machinery of foreign countries.74 Over the last few years, there has been much speculation about the role played by Italian mafia groupings in the sale of conventional and nuclear arsenals of the former Soviet Empire on to the illegal section of the market and sale to a variety of crooks and terrorist groups and states. Whereas some of these allegations are probably grossly exagerrated, the management of large scale illegal arms transactions on the part of Italian mafiosi and their front-men has been demonstrated by a recent investigation by the Procura della Repubblica di Catania.75 The main person under investigation is Felice Cultrera, a Catanese financier who has resided in Marbella, Spain for a long time and who is charged not only with laundering money on the account of the mafia boss Nitto Santapaola, but also with brokering billion dollar illegal sales of arms to several non-European countries – ranging from Morocco to Saudi Arabia – in partnership with famous arms dealers such as Adnan Khassogghi and Al Khassar Monzer. It is, however, the field of public procurement that presents the most thorough and lasting cases of imitation and interaction between subjects belonging to the organized and economic crime categories. Since the beginning of 1992, during what is internationally known as the ‘Clean Hands’ period, the inquiries carried out by numerous local Prosecutors Offices have demonstrated that the practice of conditioning and influencing the allocation of public con­tracts through the distribution of bribes was widespread all over Italy. It has been proved that in the Southern regions local mafia enterprises and well-reputed national companies not only resorted to the same illegal methods to win of public tenders but frequently entered into col­lusive agreements which guaranteed a share in the ‘pie’ and minimized both the costs and the risks of these unlawful practices. As far as the involvement of mafia consortia in the public works procurement is concerned an evolutionary path can be drawn. Since the late 1960s each mafia family in Sicily, as well as in Calabria or Campania started to impose kickbacks on building contractors working within its territory. Realizing the potential empirical evidence to the Campanian and Apulian prosecutors in charge of this judicial case. See L’Unità, Il re del grano a Poggioreale’ (1994 April 22). For an overall vjew on agricultural frauds in the European Union, see also ‘Le frodi comunitarie (relatore: onorevole G.C. Acciaro)” in Commissione Antimafia, Relazione conclusiva (Roma, 1994) doc. XXIII, n. 14, XI legislature, pp. 277–364. 74  Ministero dell’Interno, Rapporto … per il 1993, cit., pp. 131–50; 430–63. 75  Procura della Repubblica di Catania, Richiesta … Cultrera Felice + 8, cit.

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of the market, however, mafia entrepreneurs were soon not content with the parasitic collection of a ‘protection tax’, but claimed more direct involvement in the public works, through the execution of subcontracts. This qualitative leap emerged, for example, in the case of the construction of a fifth steel center at Gioia Tauro in the Reggio Calabria province:76 The Investigating Judge in the trial against Paolo De Stefano + 59 wrote: In September 1974 the three leading mafia cosche of the province, headed respectively by don Antonio Macri, by the Piromalli brothers and by the De Stefano brothers, met at Gioia Tauro to consider the projected development of the industrial port of and ‘V’ Steelwork. It would seem that all the participants agreed to reject the offer made by the businesses concerned, an offer of a 3 per cent payment on all the works carried out in return for being left in peace. It was in the mafia’s interest to make sure of getting the subcontracts, so as to make an opening for its own people and to control the whole pro­ject.77

As a matter of fact, even in the 1970s the large national companies working in the Mezzo­giorno often preferred to come to terms with the mafia power rather than denouncing undue pressures and resisting extortion claims. The alliance with local power bosses guaranteed them not only a safe working environment, but also consistent reductions on service costs, given the use of violence and intimidation on the part of the mafia firms in the internal job organization and in the management of external affairs.78 With time, while the economic assets and the political power of Southern crime groups kept growing, the alliance between large scale enterprise and mafia capitalism developed into a confidential and trusting relationship. From the early 1980s onwards the mafia bosses suc­ceeded in being fully accepted in the 76  It is interesting to recall that the multi-billion project, for many decades at the centre of debates and polemics about the economic and productive development of Calabria, envisaged the coming into production of a steel centre, complete with all the necessary infrastructure: in actual fact, only the port has been realized, though it began to be used only in 1995, more than 20 years after its construction started. For a comprehensive reconstruction of the whole history see Commissione Antimafia, Relazione conclusiva, cit., pp. 59–64. 77  Tribunale di Reggio Calabria, Ufficio Istruzione Processi Penali, Ordinanza di rinvio a giudizio contro Paolo De Stefano + 59 (1978) p. 121. See also R. Sciarrone, ‘II rapporto tra mafia ed imprenditorialita in un’ area della Calabria’, 37 Quaderni di sociologia (1993) n. 5. 78  The collusive assent of the entrepreneurial world is well exemplified by the position assumed by the senior executives of a major company of national standing that had won the contract for doubling the railway line from Villa San Giovanni to Reggio Calabria; they – according to the Judge of the trial of the sixty mafia bosses – ‘… not only failed to explain the paradoxical insertion in the work of Edilizia Reggina srl, a company owned by the Libri brothers [well known mafiosi of the region’s capital, N.o.A.), but certainly not without good reason are suspected of a criminal symbiosis with the mafia in order to earn greater illicit profits with the customary systems of delay, additional works, variants, greater allocations, suspensions: all this was very effectively supported by adequate pressure exerted on the public agencies with a view to obtaining fund allocations under the incumbent threat of the workers having to be dismissed’. See Tribunale di Reggio Calabria, Ordinanza … Paolo De Stefano + 59, cit., p. 121.



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so-called ‘comitati d’ affari’ (‘business committees’) made up of entrepreneurial groups, state representatives and officials, which controlled the whole system of parceling out tenders from the moment the public investment was planned. In a couple of important judicial inquiries the Palermo Prosecutor’s Office has been able to trace the mechanisms by which public money has been maneuvered over the last ten years in Sicily, coming to the conclusion that in the second half of the 1980s the mafia began to establish itself in a pre-existing sys­tem of illegal allocation of public contracts previously dominated exclusively by large­scale enterprises, politicians and public officials. This involvement over the years has progressively increased, tending to gain in some sectors a role of total and hierarchical control, in others, impinging on the space formerly reserved exclusively for the ‘busi­ness committees’ and in others still, developing a kind of co-existence with these same ‘business committees’.79

It was a kind of potential ‘duopoly’ that sought to subject the public works market to the complete top-downwards control of two strong subjects – Cosa Nostra and the ‘comitati d’affari’ – who had joined forces in a kind of co-existence cemented by silence and complicity. A silence that derives not only from the intimidatory capacities of the mafia organization, but also from a common interest in hiding the dense network of complicities which underlie both these systems and the very substantial economic interests involved in them. It is striking that, as the Palermo magistrates put it, ‘… unlike other Italian regions the entrepreneurs involved in one form or another by the present investigations … as a general rule assumed an attitude of obstinate complicity, refusing any kind of collaboration with the judiciary authorities’.80 In Calabria too, a major investigation, that currently sees ENEL (the National Electricity Company) involved in one of the most clamorous scandals of the entire post-war period, demonstrated that mafia conditioning no longer takes place solely ‘downstream’ of the public investment process (management of subcontracts and extortions), but rather on the ‘upstream’ side, i.e., with highlevel decisions that also involve the public agencies and the major enter­prises interested in acquiring a greater share of the work. As the Palmi Prosecutors state, As far as the construction of the ENEL power station at Gioia Tauro is concerned, the mafia succeeded in insinuating itself not only into the subcontracts, but also into the di­rect management of the works through (…) liaison elements between the contractors, the public agency affected by party kickback politics, the politicians and the mafia-par­ticipated businesses.81

Tribunale di Palermo, Ufficio del Giudice per le Indagini Preliminari, Ordinanza … Riina Salvatore + 24, cit., p. 32; see also Idem, Ordinanza … Morici Serafino + 4, cit. 80  Ibidem, p. 36. 81  Procura della Repubblica di Palmi, Richiesta di rinvio a giudizio, di misure cautelari e di archiviazione nei confronti di Galluzzo Vincenzo Rosario + 81 (1993 15 November) pp. 1987–88. 79 

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If the rise of the entrepreneurial mafia has made equal the relationships between mafia bosses and companies of national standing, it has also done away with the old subordination of the mafioso to his political patrons. What has been uncovered by judicial investigations through­out the Mezzogiorno can no longer be classified within the scheme of the traditional clientel­istic system. Nor can it be merely described as exchange of votes for public works between politicians and mafia entrepreneurs. What emerges is the existence of permanent electoral and business pacts (often behind the cover of ‘men of straw’) between politicians and modem capimafia. In Campania, for example, a true symbiosis was at work throughout the 1980s be­tween a cartel of crime groups and firms directed by Carmine Alfieri and a network of local and national politicians belonging to the Christian Democrat wing headed by Antonio Gava and Paolo Cirino Pomicino. In the request to Parliament, submitted in the spring of 1993, for authorization to proceed against them, the Neapolitan prosecutors highlight the constant functional interaction relationship existing in the territory controlled by Alfieri’s organization between the politico-electoral network, on the one hand, and the system of criminal interests on the other hand, both agglomerated around repre­sentative and charismatic individuals and interacting with each other both directly and through their respective fiduciaries.82

This symbiosis ensured that the funds for public works were entirely monopolized by the political-criminal joint ventures. As a matter of fact, the local administrators were able to control the supply of these funds, whereas Alfieri’s syndicate was in charge of discouraging, through violent intimidation, the few building companies that still insisted in presenting bids. The rise of this integrated political criminal power group must be related to two specific events of the recent history of the region: the kidnapping of the Christian Democrat regional assessor, Ciro Cirillo, by the left wing terrorist group Brigate Rosse (BR), which took place in spring 1981, and the earthquake in Irpinia in November 1980. Cirillos release was in fact made possible by the intervention of the imprisoned camorra boss, Raffaele Cutolo, at the re­quest of Antonio Gava, to whose wing Cirillo belonged, and the Italian secret services. How­ever, when the hostage was freed, the Gavas [Antonio and his father Silvio, who was also a DC politician, N.o.A.] were pressurized by Raffaele Cutolo’s requests, who demanded that the pacts be respected and threatened to create a scandal which could overturn the institutional apparatuses that had worked with him for Cirillo’s liberation. Hence the Gavas,

82  Senato della Repubblica, Domanda di autorizzazione a procedere nei confronti del Sen. Antonio Gava (Roma, 1993) doc. IV, n. 113, XI legislature, p. 59. Camera dei Deputati, Domanda di autorizzazione a procedere nei confronti del deputato Paolo Cirino Pomicino (Roma 1993) doc. IV, n. 258, XI legislature.



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feeling threatened by Cutolo, turned and signed an alliance with the only person that could at that time ef­fectively stop Cutolo. This person was Carmine Alfieri.83

The secret pacts between Gava’s political wing and the Alfieri crime network were then fur­ther strengthened by the post-earthquake reconstruction which funneled more than 50,000 billion Lira into public works in the areas ravaged by the earthquake. In particular, this event consolidated the power position of Paolo Cirino Pomicino, who, as Chairman of the House of Deputies Budget Committee, controlled the allocation of reconstruction money. From that of­fi ce, Pomicino was able to establish a privileged relation with boss Carmine Alfieri and al­legedly the two jointly controlled a small building company that was all of a sudden awarded 1,800 billion Lira in public works contracts.84 Even though for many years it was a sort of ‘national taboo’, the existence of permanent pacts between mafiosi and state representatives were being increasingly unveiled in all the three regions traditionally plagued by mafia power thanks to the recent achievements of the law enforcement apparatuses. Such a turn is clearly exemplified by the indictment of Giulio Andreotti, one of the main characters of Italy’s post-war history, for the crimes of mafia asso­ciation and murder.85 Although the attention of national and international public opinion has been focused on this case, other investigations are going on in respect of several national as well as local politicians and state officials. There is no time to analyze the results of these in­quiries in detail. It is worth, however, pointing out that particularly in Calabria, whose crime consortium has for a long time been favoured by a persistent neglect on the part of the law enforcement community and national public opinion, the intermingling between mafia con­sortia and clientelistic-business networks has reached a further stage of development: the 83  Ibidem. See also the Indictment order filed by Judge Carlo Alemi of the Naples Court in July 1988 which first unveiled the illicit deals surrounding Cirillo’s freeing: it was published in V. Casile, ed., L’affare Cirillo, L’atto di accusa del giudice Carlo Alemi (Roma, [1988] 1993) and I. Sales, ‘Ciro Cirillo’, in N. Tranfaglia, ed., Cirillo, Ligato e Lima. Tre storie di mafia e politica (Roma-Bari 1994) pp. 33–100. 84  Commissione Antimafla, Relazione sulla camorra (Roma 1993 December 21) doc. XXIII, n. 12, XI legislature. See also Commissione Parlamentare d’ inchiesta sull’attuazione degli interventi per la ricostruzione e 10 sviluppo dei territori della Basilicata e della Campania colpiti dai terremoti del novembre del 1980 e del febbraio 1981, Relazione conclusiva (Roma 1989) doc. XXIII, n. 27, X legislature. 85  Procura della Repubblica di Palermo, Memoria … Andreotti Giulio, cit. The indictment order for the crime of mafia association has been published in the volume entitled La vera storia d’Italia. Interrogatori, testimonianze, riscontri, analisi. Giancarlo Caselli e i suoi sostituti ricostruiscono gli ultimi venti anni di storia italiana, edited by S. Montanaro and S. Ruotolo (Napoli 1995). A synthesis is then provided in P. Arlacchi, Il processo. Giulio Andreotti sotto accusa a Palermo (Milano 1995). Other documents have been published by U. Santino, ‘Guida al processo Andreotti’, Città d’utopia (1995, November). Interpretations have then been advanced by E. Macaluso, Giulio Andreolli tra stato e mafia (Soveria Mannelli 1995) and S. Lupo, Andreotti, la mafia, la storia d’Italia (Roma 1996). Lastly, see also G. Andreotti, Cosa loro. Mai visti da vicino (Milano 1995).

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uni­fication of the two power structures through the infiltration of State institutions by men formally affiliated to the mafia confederation. As Roberto Pennisi, a Substitute Prosecutor of Procura della Repubblica di Reggio Calabria, stated in front of the Antimafia Commission, often when we talk about the relationships between mafia and organs of the State, of politics, of professions (physicians, lawyers, engineers and so on), we think that the mafia is on one side and all these other realities on the other and that these relationships are almost like rivers that are set up between these two entities. But, there are no rivers, because it is the same thing. The mafia has its own physicians, its own lawyers, its own politicians and perhaps its own pieces of State institutions. There is no need to imagine a relationship. (…) The mafia has all these characters inside, it shapes them, they are its own, it does not need to get close to them or to entrap them, in order to get, and conse­quently give, favours.86

In fact, whereas Cosa Nostra has increasingly reduced this once widespread practice out of lack of respect for and distrust of the political class,87 ’ndrangheta families have increasingly succeeded over the last twenty years in having their own members elected to hold public of­fi ces, in order to foster their economic and political interests more effectively and cheaply. In some cases the mafiosipoliticians even hold ruling positions within the mafia consortia. Since the death of Paolo De Stefano in 1985, the two main chiefs of the Reggio Calabria De Stefano clan were (allegedly) the cousin of the latter, the lawyer Giorgio De Stefano, who was for a long time a Christian Democrat representative in the city council, and Paolo Romeo, a member of Parliament for the Partito Socialdemocratico Italiano (PSDI) for several legislatures.88

5. Masonic Networks and Terrorist Groups In all those cases in which the internalization of representation has not been deemed feasible or convenient, the infiltration into the official Masonry – or more frequently into its ‘covered’ illegal segments – has represented for Calabrian and Sicilian mafia bosses an equally effective alternative strategy.

86  Commissione Antimafia, Audizioni in Calabria (Roma, 1993 January 29) XI legislature, pp. 122–123. 87  The ‘double membership’ to mafia and state institutions was not an uncommon practice in Sicily up to the 1960s, when the mafia culture of honour and brotherhood was shared by large strata of the Sicilian population and the opposition between Cosa Nostra and state institutions was not felt as sharply as it is today. According to the concurring statements of numerous Justice collaborators, several important politicians of the past were ritually made ‘men of honor’: among them even a Prime Minister of the pre-fascist times Vittorio Emanuele Orlando. See P. Arlacchi, Addio … cit., pp. 92–105. 88  Camera dei Deputati, Domanda di autorizzazione a procedere in giudizio contro il deputato Paolo Romeo (Roma, 1993) doc. IV, n. 465, XI legislature.



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As a matter of fact, several inquiries and trials have proved that since the early 1970s the Masonry has become for two major mafia organizations a privileged’ locus’ to establish or to strengthen relationships with national entrepreneurs, politicians and state officials. The collu­sion of capimafia with the ‘deviated’ Masonry first emerged in the different investigations centered around the complex figure of the financier Michele Sindona,89 and it has been then confirmed by the inquiries carried out by the Prosecutors of Palermo and Palmi.90 Nowadays however, thanks to the information provided by many mafia members that have started to co­operate with the Judiciary over the last five years, it is possible to reconstruct the history of this relationship with an unprecedented degree of precision. Up to the late 1960s the contacts between the Masonry on one side and Cosa Nostra and the ’ndrangheta were sporadic. According to various Justice collaborators in Sicily from its beginnings the relationship was characterized by the acknowledgment of the reciprocal spheres of autonomy and of the equality between the two brotherhoods. Through Masonic channels extreme right-wing movements asked Cosa Nostra to participate in two different subversive attempts: in the coup-d’êtat organized by Prince Junia Valerio Borghese in 1970, and in another one which was planned for 1974. In its tum, Cosa Nostra requested the inter­vention of the Masonry in the fixing of several pending judicial proceedings which involved some of its most influential members. Then, from the mid-1970s 89  See the Indictment order against Sindona for the murder of Giorgio Ambrosoli deposited by the Investigating Judges Giuliano Turone and Gherardo Colombo in July 1984 and published in Sindona. L’atto di accusa dei giudici di Milano (Roma, 1986); Commissione Parlamentare d’inchiesta sui caso Sindona e sulle responsabilità politiche ed amministrative ad esso eventual mente connesse, Relazione conclusiva (Roma, 1982) doc. XXIII, n. 2-sexies, VIII legislature; Procura della Repubblica di Palermo, Memoria … Andreotti Giulio, cit., ch. 18. 90  Whereas most of the hypotheses on the links between mafia and masonry have not yet received a confirmation by courts due to the ‘legendary’ slowness of the Italian judicial system, a first degree sentence has been issued in respect of one of the earlier inquiries carried by the Palermitan prosecutors. In 1993 in fact, the Trapani Lower Court condemned Giovanni Grimaudo and Natale Torregrossa for having set up a secret masonry lodge at the ‘Scontrino’, a cultural club in Trapani, ‘with the aim of interfering in the running of political and administrative functions of various public bodies’. Even though, because of an amnesty, the remittal order has acquitted many of the ‘men of honor’ of the Trapani Province who were members of the secret lodge, it is significant that the inquiries have ascertained that there are ‘forms of contiguity and partnership between the members of the secret lodge, inappropriately called the “Inside 2” lodge (…) and the most outstanding representatives of the local mafia linked to the families operating in the Mazara area, in the AIcamo territory and in Castellammare del Golfo’. See Tribunale di Trapani, Ufficio Istruzione Processi Penali, Sentenza-ordinanza di rinvio a giudizio contro Agate Mariano + 59 (1990 October 19). Further proof of these deviations is then represented by the decision of the United Grand Lodge of England in 1993 to withdraw its recognition from the Grande Oriente d’Italia (GOI), the largest association of Italian Masonic lodges on grounds of irregularities and deviations. Following the decision of the British body, the corresponding Masonic communions of France, Ireland, Scotland and the United States have suspended their relationships with the GOI. See L’Unita, ‘Massoneria, sospeso il Grande Oriente’ (1993 April 14).

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the relationship became much closer. According to Antonino Calderone, in 1977 a secret Masonic lodge asked Cosa Nostra to let two ‘men of honor’ for each province join the Masonry. Allegedly, it was Ste­fano Bontade, through his brother-in law Giacomo Vitale, who belonged to a Masonic lodge, that promoted this initiative and, by highlighting the great advantages connected to it, con­vinced the most influential Cosa Nostra chiefs to authorize the violation of the rule prohibit­ing the membership of mafia adherents to other associations.91 Unlike Cosa Nostra, the ’ndrangheta was, throughout the 1960s, in a subordinate position to the Masonry. No mafiosi were affiliated to the Masonry, but, according to tthe former ’ndrangheta affiliate, Giacomo Lauro, the latter ‘acted as a connecting means with State in­stitutions and … obtained a percentage from the businesses that brokered on our account’.92 Following the Reggio Calabria revolt of 1970, however, the relationship between the two as­sociations was strongly intensified and was set up on a more equal basis. In fact, the manage­ment of the revolt, which had initially included wide sectors of the city population protesting the transfer of the regional administration to Catanzaro, was soon monopolized by the heads of right-wing movements belonging to the Masonry and by certain ’ndrangheta bosses, most notably the De Stefano brothers. This close interaction promoted the affiliation of mafiosi to the Masonry and their involvement in the subversive projects elaborated by the former ones. The entrance of ’ndrangheta chiefs into the Masonry was institutionalized with the creation of a secret rank: (‘Santa’) within the Calabrian organization at the beginning of that same de­cade. Parting from the traditional mafia code, the ‘Santa’ allowed its members to weave con­tacts with State representatives and to carry out several types of lucrative illicit activities which had been previously prohibited. As highlighted by one of the first Calabrian ‘pentiti’, Giuseppe Albanese, whereas in the past the organization opposed itself to the State and the affiliates were bound to live through the so-called ‘sgarro’ [that is extortion practices, N.o.A] … the Santa proposed any form of illicit earning, the commission of activities that in the past the ’ndrangheta had not allowed (kidnappings and drug trafficking) and the santista could have contacts with the members of [State] Institutions, as opposed to what hap­pened in the past.93

Moreover, all the members of the ‘Santa’ were authorized to join the Masonry and indeed, according to several ‘pentiti’, most of them did, so far that – according

Commissione Antimafia, Relazione sui rapporti tra mafia e politica (Roma, 1993 April 6) doc. XXIII, n. 2, Xl legislature, pp. 60–66. See also Nota integrativa alla relazione sui rapporti mafia e politica del deputato Alfredo Galasso enclosed with the same document, pp. 98–100. 92  Procura della Repubblica di Reggio Calabria, Richiesta … Condello Pasquale + 477, cit., p. 4933. 93  Ibidem, p. 6599. 91 



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to Pasquale Barreca, a former high ranking member of the De Stefano coalition – ‘in Calabria the ’ndrangheta and the Masonry have become a “single thing”’.94 The infiltration in the Masonry as well as illicit lobbying networks have come to carry out several important functions which are crucial for the survival of the mafia consortia. As the judge in the preliminary investigations of the Palermo Court wrote in an order of arrest for several highly esteemed professionals from Mazara del Vallo (TP) who were simultaneously members of Cosa Nostra and of ‘deviated’ Masonic lodges, the contacts between the two organizations – far from being sporadic episodes – re­flect a precise role that Cosa Nostra has assigned to the Masonry in its strategy of ‘ap­proaching’ and of ‘penetrating’ into the political and institutional circles. It is above all through the Masonry, and above all within the secret lodges, hence in a regime of utmost secrecy, that the mafiosi meet one another and enter into illicit agreements with politicians, entrepreneurs and professionals.95

Likewise, in a monumental request for warrants of arrest for almost 500 members of the ’ndrangheta, the Calabrian prosecutors maintain that: the entrance into previously existing or ad hoc constituted Masonic lodges had to be the way to establish links with those social strata which traditionally adhered to the Masonry, that is members of the liberal professions (physicians, lawyers and notaries), entrepreneurs and politicians, representatives of state institutions, among whom magis­trates and members of the police forces. Through this link, the ’ndrangheta was able to find not only new possibilities for its economic investments, but previously unconceived of political outlets and above all that ‘covering’, accomplished in various ways and in various levels (diversions, lack of investigations, attacks of every kind on the noncom­pliant magistrates, adjustments of trials, etc.,), which produced that substantial im­punity, that has characterized this criminal organization, making it almost ‘invisible’ to the institutions, to such an extent that only a couple of years ago did it come to the at­tention of the national public opinion and of the most qualified investigative bodies.96

94  Ibidem, p. 5722. Indeed, according to a hypothesis recently put forward by a ‘pentito’, the only murder of a high ranking state representative ever committed by the Calabrian ’ndrangheta – the murder of Francesco Ferlaino, State General Advocate, the second Italian Judicial Authority after the General Prosecutor, which took place in Lametia Terme in July 1975 – was allegedly carried out to allow the infiltration of the ’ndrangheta into the Masonry. According to Giacomo Lauro, a fonner high ranking mafia member in fact, ‘Judge Ferlaino was killed because the equilibria within the Masonry broke. Ferlaino, who was Mason, opposed the new Masonic-business project, which started to root especially in the South, under the direction of Licio Gelli, foreseeing the hoarding of every profitable licit or illicit deal. Substantially Ferlaino opposed the degeneration of the Masonic structure from a licit to an illicit body’. See Procura della Repubblica di Palmi, Richiesta … Galluzzo Vincenzo Rosario + 81, cit., p. 5754. 95  Tribunale di Palermo, Ufficio del Giudice per le Indagini Preliminari, Ordinanza di custodia cautelare in carcere nei confronti di Ferraro Pietro + 9 (1993 December 27). See also Commissione Antimafia, Relazione sui rapporti …, cit., pp. 60–66. 96  See Procura della Repubblica di Palmi, Richiesta … Galluzzo Vincenzo Rosario + 81, cit., pp. 4980–81.

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The Masonry did not only provide contacts with politicians and state officials. By enhancing contacts with members of the economic and financial establishments, the affiliation to the Masonic network also allowed mafia members to discover new channels for the laundering and reinvestment of illicit proceeds and to enter into collusive agreements aimed at the con­trol of the public procurement market. As a matter of fact, the contacts between Sicilian mafia groups and Michele Sindona in the 1970s were at least partially mediated by the Ma­sonry. Sindona’s false kidnapping by which he subtracted himself from the arrest by the American authorities for the bankruptcy of the Franklin National Bank, was largely spent in Sicily and was co-managed by Cosa Nostra and the Masonry.97 Likewise, it was the secret Masonic lodge ‘Propaganda 2’ (P2), headed by Licio Gelli, that allegedly acted as a guarantor in the laundering of the drug money of the Sicilian cosche carried out by Roberto Calvi, the di­rector of the Banco Ambrosiano.98 Furthermore, the Palermitan judicial authorities recently arrested Pino Mandalari, a well-known local accountant, accusing him of managing Riina’ s properties since the late 1960s through a wide series of shell companies. Mandalari headed a secret Masonic lodge, which, though not affiliated to any internationally recognized Masonic order, attracted several members of the Sicilian establishment: it was through this network of contacts that Mandalari succeeded in securing good investments for his clients as well as rep­resenting Cosa Nostra’s interests within the circles of the Palermitan ‘high society’.99 The exploitation of the Masonic network on the part of mafia confederations was un­doubtedly facilitated by some specific features of this association. First of all, the bond of solidarity, of brotherhood, of mutual aid to which the ‘brothers’ pledge themselves makes it easier for mafia members to ask for ‘favours’, even from people belonging to the political and administrative community in the Masonic lodges. Secondly and more importantly, the ‘confidentiality’ that characterizes Masonic membership makes it increasingly difficult to reconstruct the interpersonal relations which constitute the organizational foundation of the association and provides both the mafiosi and their counterparts in illicit deals a well founded expectation about the silence and the reliability of each other. Even if the politician or the judge, who is asked a ‘favour’ by a Masonic brother, refuses, he is still bound to keep the il­licit request secret and cannot denounce it to the law enforcement agencies.100 The entrance of Cosa Nostra and ’ndrangheta bosses into official or ‘parallel’ Masonic lodges has strongly accelerated the process of integration of Italian See the sources listed in note 88. L. Paoli, loc. cit. (1995). 99  Tribunale di Palermo, Ufficio del Giudice per le Indagini Preliminari, Ordinanza di custodia cautelare in carcere nei confronti di Mandalari Giuseppe + I (1994, December 17). 100  Tribunale di Palermo, Ordinanza … Ferraro Pietro + 9, cit. 97  98 



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criminal society. First of all, as we have already seen, secret pacts between mafiosi and representatives of white-collar crime in its wider sense have been established under the ‘discrete’ aegis of the deviated Ma­sonry. Secondly, the infiltration into Masonic and/or illicit lobbying networks by Sicilian and Calabrian mafia chiefs has strengthened the relationship between the two mafia associations mentioned above. In fact, since 1979 a ‘covered’ Masonic lodge was allegedly established in Calabria, which included the mafia ‘gotha’ as well as many influential local politicians, state representatives and members of the liberal professions: according to the Calabrian ‘pentito’ Pasquale Barreca, this lodge ‘had very close links with the Palermo mafia, to which it had to account’.101 Thirdly, this evolution has promoted the intermingling of ‘traditional’ crime associations with terrorist movements and ‘deviated’ segments of State institutions, favouring the circula­tion of experiences, techniques and contacts among the different criminal subjects. This is a topic which must be dealt with prudently, since there is little information available and even less which has been confirmed by a court judgment. Nonetheless, the limited number of judi­cial sentences cannot be easily dismissed as proving a lack of empirical evidence. Most in­vestigations into this have only been started in the last few years and they are understandably kept under wraps by the Prosecutors in charge of them. Moreover, up until a few years ago, several Justice collaborators – such as Tommaso Buscetta and Francesco Marino Mannoia­refused to make any statement about this or about the relationship between ‘mafia and poli­tics’, fearing that their words could be exploited to undermine their reliability and to stop the fight against the mafia. 102 Furthermore, in several other cases the few members of the Judi­ciary that dared to start investigations on these issues have been prevented from working and their investigations have been dismissed, transferred to more ‘maIleable’ judicial seats or blocked in all ways by the open coIlusion, the conservative outlook or the passive acquies­cence of their coIleagues.103 Procura della Repubblica di Palmi, Richiesta … Galluzzo Vincenzo Rosario + 81, cit., p. 5779. Procura della Repubblica di Palermo, Memoria … Andreotti Giulio, cit., Vol. I and II, passim. 103  For example, the inquiry concerning the Masonic lodge P2 was handed to the Milanese Investigative Judges Giuliano Turone and Gherardo Colombo who had discovered the list of P2 members in the course of their inquiries on Sindona’s false kidnapping, and transferred to the Rome Court, which for a long time enjoyed the meaningful nickname of ‘foggy port’. There in April 1994, against the request of the Rome Prosecutor, the court grossly reduced the charges, acquitting Licio Gelli, the chief of the lodge, and the other defendants from the crime of political conspiracy. An even worse burden fell on the Investigating Judge Carlo Alemi who first uncovered the shady deals between camorra, DC, Brigate Rosse and secret services that had led to the release of Ciro Cirillo. In the course of his inquiries, Alemi was routinely attacked by the same Neapolitans politicians he was investigating that then held major political roles – Antonio Gava for example was Interior Ministry – and was lastly even subjected to a disciplinary proceeding. In the same way, the Calabrian Procura della Repubblica di Palmi was de facto forbidden to carry out an investigation into the deviations of the Masonry which it had started in summer 1993. In fact, notwithstanding the vast number of checks to be carried out and the small amount of personnel 101  102 

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Notwithstanding these difficulties, there are several elements that back the hypothesis of interaction between traditional mafia associations, terrorist groups and secret services mostly through, but also independently of, the intermediation of the lobbying network. Consistent proof first of all emerged from the inquiry into the so-called Christmas slaughter, which caused the death of 16 people and injured another 266 passengers on the ‘904 train’ travel­ling from Firenze to Bologna on 23 December 1984.104 According to the final sentence of the proceedings, the attempt was organized by Pippo Calò, the chief of the Cosa Nostra Rome ‘column’, with the advice and cooperation of members of the Roman underworld and elements from the subversive right. More recently, the Reggio Calabria Prosecutors have highlighted the fact that the secret Masonic lodge made up of Calabrian and Sicilian bosses was allegedly established by Franco Freda, a Mason and consultant of the secret services that was also one of the historical leaders of the subversive right movement.105 The same law en­forcement office has further hypothesized the involvement of the Calabrian representatives of Avanguardia Nazionale (the largest and most established right wing subversive group) and some people close to the ’ndrangheta in the organization of numerous explosive attempts which were carried out across the country in the early 1970s and in particular in the so-called ‘slaughter of Gioia Tauro’. The incident in which a piece of railroad next to the Gioia Tauro station was blown up causing the derailment of a train, the death of 6 people and 54 injuries, was for a long time strongly undervalued by the law enforcement agencies which classified it as a mere railroad accident. In actual fact, according to the recent finding of the Reggio Cala­brian Prosecutor’s Office, such an attempt, which was supposed to cause a large number of deaths, should be considered as the beginning of the

(only three magistrates), the repeated requests of Palmi’s Chief Prosecutor, Agostino Cordova, to have the office strengthened by the temporal transfer of some magistrates were either thoroughly denied or accepted only for very short periods of time. On this matter, the Parliamentary Antimafla Commission of the XI legislature wrote: ‘this is the situation that characterizes the inquiry on the Masonic deviations: insufficiency of magistrates, continuous alternations and magistrates that every time must start again to read the papers (about 800 boxes of documents, the investigations still going on)’. Lastly, it is worth remembering that even the Palermitan Judges Giovanni Falcone and Paolo Borsellino underwent a painful delegitimation campaign, being accused of exploiting mafia investigations to enhance their own career. In particular Falcone was prevented from assuming a directing position in the Palermo Court on spurious grounds by the same self-governing body of the Judiciary. On the different points respectively see La Repubblica, ‘P2 assolta: non fu cospirazione’ (1994 April 17); A. Bassolino, ‘Presentazione’, in V. Vasile, ed., op. cit.; M.A. Calabrò, ‘Il porto delle nebbie’, Micromega (1993) pp. 89–90; Commissione Antimafia, Prima … cit., note 15 and L’Espresso, ‘Fratelli & Cavilli’ (1996 April 19) p. 69; A. Stille, Excellent Cadavers. The Mafia and the Death of the First Italian Republic (London 1995) passim. 104  Suprema Corte di Cassazione, Sentenza sui ricorsi proposti da Calò Giuseppe ed altri avverso la sentenza del 14.3.1992 della Corte d’ Assise d’ Appello di Firenze (1992, November 24). 105  Procura della Repubblica di Palmi, Richiesta … Galluzzo Vincenzo Rosario + 81, cit., pp. 4532–36; 4993–37.



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nationwide ‘subversion strategy’ staged by extreme right wing movements in cooperation with wide sectors of the Masonry and ’ndrangheta bosses.106 Additionally, a very recent sentence of the Palermo Court condemned Bruno Contrada, a former high officer of the police and of the civil secret service, to ten years imprisonment after finding him guilty of the crime of mafia association: Contrada is charged with maintain­ing a close relationship with several mafia bosses – in particular with Rosario Riccobono, head of the Partanna Mondello family – and of systematically favouring Cosa Nostra’s inter­ests.107 Moreover, time and again law enforcement agencies have hypothesized that the terrorist campaign staged by mafia consortia over the period 1992–1993108 might not have been en­visaged or implemented by them alone. The point is, for example, clearly stated in the 1993 Report on the Phenomenon of Organized Crime issued by the Italian Interior Ministry: ‘There are many elements, such as the places chosen to put the devices so as to obtain as much worldwide publicity as possible, the considerable expertise in mass communication mechanisms and the ability to probe the political milieu, which do not seem the typical ex­pression of mafia mentality but the outcome of more complex and refined minds’.109 As a matter of fact, these acts of terrorism do not seem to meet exclusively the mafia organizations needs. Cosa Nostra’s interests perhaps happened to coincide with those of other illicit centres of power threatened or affected by the judicial investigations or jeopardized by the ongoing political and institutional changes.110

Ibidem, pp. 6588–97. See Corriere della Sera, “’Contrada favoriva i boss”: 10 anni’ (1996, April 6) and Tribunale di Palermo, Ufficio del Giudice per le Indagini Preliminari, Ordinanza di custodia cautelare in carcere nei confronti di Contrada Bruno (1992, December 22). 108  The terrorist campaign was opened on May 23, 1992 with the so-called Capaci slaughter which caused the death of the magistrate Giovanni Falcone, his wife and three members of the escort. Two months later, another car bomb killed Judge Paolo Borsellino and five policemen accompanying him in via d’Amelio in Palermo. In 1993, there were three other main terrorist attacks: on May 14, 1993 a car bomb exploded in Via Ruggero Fauro in Rome; two weeks later, an even more devastating blast in Via dei Georgofili, in Florence’s historical centre, seriously damaged some halls of the adjacent Museo degli Uffizi and caused the death of 5 persons; lastly, on the night between 27 and 28 July, three bombs exploded rapidly one after the other near the Basilica of San Giovanni in Laterano and the ancient church of San Giorgio in Velabro in Rome, and in the gardens of the municipal villa in Via Palestro in Milan. These attacks caused the death of 6 people, wounded many others and seriously damaged these two sacred places. 109  Ministero dell’Interno, Rapporto … per il 1993. cit. p. 12. On this point, see also L. Violante, I corleonesi. Mafia e sistema eversivo (Roma, 1993). 110  A partial confirmation of this thesis comes from the arrest of colonel Citanna, a high officer of the civil secret service (SISDE, Servizio per le informazioni e per la sicurezza democratica): together with three camorristi, the latter is charged with the organization of a faked explosive attempt on a train travelling from Sicily to Turin in September 1993 with the aim of fostering a climate of tension in the whole country. See Commissione Antimafia, Prima …, cit., p. 27. 106  107 

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6. Concluding Remarks Over the last twenty years the different segments of the Italian crime scene have undergone a fast and intense process of integration and growing interdependence that has no parallel in any Western developed states. In no other industrialized country do the patterns of relation­ships among organized crime actors and between white-collar crime seem to be so intense. Some of these nations – such as Germany and Switzerland – have a prosperous economic criminality, stimulated by the dimensions and the degree of internationalization of their fi­nancial markets, and in the Swiss case, especially in the past, by a lenient legislation, but none of them shows anything like the Italian interplay between this type of criminality and the military power of the mafia groups. Others – the United States for instance – have serious and long-standing problems of organized crime, but there have always been effective barriers implemented both by public institutions and legal corporations to prevent the entrance of il­legal capital and illegal practices into the major national markets.111 The only tenable parallel seems to be with the crime situation of the former Soviet states. There, the explosion of crime has been so impetuous, given the possibilities opened up by the dismantling of the former security apparatuses, the lack of resources and the inefficiencies of new law enforcement agencies and the perverse effects of the sudden introduction of a mar­ket economy, that it is now almost impossible to draw the traditional lines between organized crime, white-collar crime and political-administrative corruption. The ‘black’ and illicit mar­kets, as well as relevant sections of the legal ones, are controlled by a plurality of criminal ac­tors, with the extensive collusion of former Communist party officials and public bureaucrats, and an almost unrestrained recourse to violence.112 Without doubt the Italian experience reflects both the presence of three rooted mafia con­sortia since the late 19th century in the Mev.ogiorno and the permanence, up to the present day, in large sectors of the entire national society of political and economic cultures inspired by particularism and by family and friendship loyalties.113 Notwithstanding its peculiarities, however, the trend towards the unification of the Italian crime scene cannot be discarded by foreign observers on the grounds that it is an expression of the Italian cultural, political and economic 111  P. Arlacchi, ‘La questione crimina le in ltalia’, in P. Arlacchi and N. Dalla Chiesa, La palude e la citia. Si può sconfiggere la mafia (Milano 1987) pp. 1–28. 112  L.I. Shelley, ‘Post-Soviet Organized Crime: Implications for the Development of the Soviet Successor States and Foreign Countries’, 9 Criminal Organizations (1994) pp. 14–22 and S. Handelman, Comrade Criminals. Russia’s New Mafiya (New Haven and London 1995). 113  On this matter see for example the recent series of articles that have been published on Quaderni di sociologia (1995) n. 1.



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systems. The more frequent and closer relations among Italian illegal actors must in fact be inserted into the unification trend which has af­fected the domestic and international illicit markets since the end of the Second World War. As is well-known, throughout the post-war period illegal markets have grown at a steady pace, with particular acceleration since the 1970s and have become integrated on a domestic and international scale. In parallel with the expansion of commercial exchanges, a worldwide illicit market of commodities, labour and capital has developed: arms, drugs, secret informa­tion and enslaved human beings circulate throughout the world much more freely and on a larger scale today than ever before.114 It is only in the last five years that, after a forty-year long trend of growth, one of the main illegal markets – the narcotics market – has shown some signs of ‘maturation’ or even decline of demand. In the long run, however, it seems un­likely that the growing unification and interdependence of the worldwide illegal commerces and the different segments of the international crime society can be stopped, given that it is an undesired outcome of the unrestrainable globalization of the licit economy and the gradual breaking down of national frontiers and barriers in favour of the free circulation of men and goods. Hence, far from being dismissed as unique to Italy, the trend towards the growing unifica­tion of the different segments of the Italian crime scene can provide some interesting ‘fore­casts’ and hints about analogous integrative processes that might take place in other countries as well as on an international level.

114 

P. Arlacchi, Mafia Business …, cit., p. 214.

Criminal Kaleidoscope: The Diversification and Adaptation of Criminal Activities in the Soviet Successor States Louise Shelley Professor of Sociology, American University, Washington D.C., United States

Post-Soviet organized crime is often analyzed as a homogeneous phenomenon. All of the post-Soviet successor states face serious organized crime problems but very significant re­gional differences exist which challenge any efforts to address it as a uniform phenomenon. Moreover, the distinct successor states have different capacities and political will to fight the problem ensuring that regional differences will grow over time. Almost all the countries of the former Soviet Union have extortion rackets, casinos, pros­titution rings and illegal drug trafficking but in certain regions particular crimes predominate. In regions devastated by civil war and/or the collapse of the Soviet state support system, or­ganized crime is more concentrated in certain types of illicit activity. For example, in the Caucasus, arms trafficking is a central activity of organized crime whereas in Kyrgyzstan or­ganized criminals engage predominantly in drug trafficking. In Central Russia, the Far East and the Baltics, where the legitimate economy is more intact, organized crime is less con­cerned with these two forms of criminal activity; its criminal activities are tied more closely to the legitimate economy. The endemic corruption and shadow economy of the Soviet period are now being trans­formed into the contemporary problems of organized crime and corruption.1 Their metamor­phosis is shaped by a multiplicity of political, economic, geographic, cultural factors, the overarching legacy of the Soviet period and the years of post-Soviet transition. The diversity of contemporary post-Soviet organized crime is also explained by contacts with international crime groups and

1  For a discussion of this by V.M. Episov see A.I. Dologova and S.V. D’iakov, eds., Organizovannaia Prestupnost’ Vol. 2 (Moscow 1993) pp. 56–63.

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traditional factors contributing to the rise of organized crime such as strategic ports, presence of significant ethnic minorities and longstanding trade routes.2 As the centralized controls of the authoritarian Soviet state are lifted, regions are devel­oping distinctive political, social and economic features. The observed diversity of organized crime in Russia and the successor states mirrors the visible changes occurring in all aspects of post-Soviet society. The conventional wisdom is that post-Soviet organized crime is a transitional phenomenon responding to the absence of legal norms in a period of profound property redistribution.3 Or­ganized crime fills the void left by the collapse of Soviet power and the weakness of the suc­cessor states. According to this perspective, organized crime will become much less threatening when legal norms are adopted to accommodate the market economy. This article challenges this view suggesting that the legacy of the Soviet period and the de­liberate policy decisions of the Gorbachev and Yeltsin governments in Russia and of the new governments of the successor states have also been important determinants of post-Soviet or­ganized crime. The current diversification and flexibility of post-Soviet crime groups sug­gests that the phenomenon will not rapidly disappear once the initial transition period is over. Many criminals and their organizations have adapted to their countries and will develop in tandem with the successor states.

1. The Diversification of the Organized Crime Phenomenon European Russia has dominated discussions of post-Soviet organized crime. Yet Russia itself is an enormous country which spans two continents. The crime problems of Asian Russia are very different from those of Moscow and St. Petersburg which possess a disproportionate share of Russia’s capital resources and contacts with the West.4 Russia’s crime problems have many distinguishing features which set them apart from those in the Baltics, Central Asia and the Caucasus. 1.1. Within Russia Different parts of non-European Russia face different problems. Ekaterinburg, in the Urals, is an important transshipment point for the illicit cargoes of organized

2  P. Williams, ‘Transnational Criminal Organisations and International Security’, 36 Survival I (1994) pp. 96–113. 3  See for example, J.A. Leitzel, ‘Corruption in the Russian Transition’, Ellrasia Economic Outlook (1996) pp. 1.7–1.8. 4  For a discussion of regional differences see V.S. Ovchinskii, Strategiia Bor’ by s Mafiei (Moscow 1993) pp. 52–71.



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crime.5 In Siberia with the vast mineral resource of the former Soviet Union up for grabs, managers of the metal in­dustry are privatizing the resources to themselves and then depositing the proceeds of the sales abroad.6 Trafficking is occurring not only in precious metals but in nuclear materials.7 Vladivostok in the Far East is fast becoming a center for both Russian and transnational organized crime. Its proximity to Asian organized crime groups and its fishing fleet give it distinctive features. Organized crime possesses a power not known in other parts of the country as it has been more successful in intimidating the press and in driving out a politician who challenged the authority of local crime bosses.8 The former mayor of Vladivostok has filed a legal case for his reinstatement after three attempts on his life. His son is presently in jail facing trumped up murder charges. He spoke at a Moscow Human Rights conference in May 1996 about his family’s travails and his replacement by a politician with ties to or­ganized crime.9 Vladivostok and the other ports of the Primorskii Krai, like the Baltic and Black Sea ports, has dynamic transnational organized crime. The fishing fleet of the former Soviet Union, pri­vatized to its managers, engages in large scale smuggling. Illicit trafficking in stolen auto­mobiles is particularly pronounced in Vladivostok with proximity to the rich sources of supply in Japan. Its criminals are linked with Japanese Yakuza, Chinese triads and crime ele­ments from North Korea. The criminals of Vladivostok also have many links to the Pacific Coast of the United States.10 1.2. Belarus and Ukraine The two Slavic countries to emerge from the USSR face very different crime problems. Be­larus, with its proximity to Germany, is particularly prominent in the trade of stolen vehicles. Its numerous casinos are active centers for money laundering.11 The country with its more limited economic base lacks the diversity of organized crime found in the more populated and larger countries of Ukraine and Russia. Urals State Legal Academy, Organizovannaia Prestupnost’: Sostoianie i tendentsii (materialy issledovaniia) (Ekaterinburg 1995). 6  V.S. Ovchinskii, op. cit., p. 68. 7  Oleg Shkurins, ‘Poleznoe iskopaemoe-med’. Iz transformatora’, Vechernii Irkutsk (29 Feb 1996) p. 2. 8  Elizabeth Tucker in ‘The Russian Media’s Time of Troubles’, 4 Demokratizatsiya, 3 (1996) pp. 443–460. 9  Declaration of the Coordinating Meeting of the 20th Anniversary of the Moscow Helsinki Group, ‘On the events in the city of Vladivostok and the Mayor V.I. Cherepkov,’ documents signed by Iu. Orlov and L. Alekseeva, May 13, 1996. 10  A.G. Korchagin, V.A. Nomokonov, V.I. Shul’ga, Organizovannaia Prestup’nost i Bor’ba s Nei (Vladivostok 1995) pp. 68–95. 11  Interview with deputy director of Belarus Interpol, November 1995 in Moscow. 5 

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Great variations are found within the Ukraine. These regional differences are explained by geography, political structure and historical legacy. The port city of Odessa, known for its pre-revolutionary organized crime, remains a vibrant organized crime center with over 6,000 participants.12 The criminals’ links to Brighton Beach in New York are well documented in investigative reports of American law enforcement.13 Many of the crime groups also partici­pate in transnational criminal activity, the Black Sea links Ukrainian criminals with Turkish and Lebanese drug traffickers. The capital, Kiev, the seat of national government with superior transportation links to the outside world provides many opportunities for foreign crime groups. Italian construction firms are plainly in evidence and members of a Colombian drug cartel recently purchased Ukrainian planes suitable for transporting narcotics. Donetsk, a traditional seat of Communist Party power, has crime more linked to the old nomenklatura (Communist Party apparatus) structures and the contract killings associated with the distribution of state resources.14 1.3. The Baltics The problems of organized crime in the Baltics have received insufficient attention and most analysis has focused on the transshipment of raw materials from Russia. Smuggling of valu­able metals through Estonia occurred on a mass scale in the early 1990s and continues on a diminished level as Russian smugglers continue to export through Baltic sea ports. Alien and drug smuggling continues on a large scale today.15 Apart from their role as transshipment countries, the three countries of Estonia, Latvia and Lithuania all have serious indigenous problems of organized crime. Despite the small size and populations of these countries, organized crime structures are different in these three so­cieties. Lithuania and Latvia have numerous uncoordinated crime organizations whereas Es­tonia is distinctive in having a single godfather to direct its crime activities.16 Declassified FBI information on Odessan organized crime. Statement of George J. Weise, Commissioner, United States Customs Service, at the Senate Permanent Subcommittee on Investigations, Committee on Government Affairs hearings on Russian Organized Crime in the United States, May 15, 1996. 14  ‘Ukraine:Interior Minister on Crime Situation’, FBIS (Foreign Broadcast Information Service) – Sov-95-235 Daily Report 7 December 1995; Presentations at Organized Crime Conference sponsored by Rule of Law program, Kiev, Ukraine, March 17–18, 1996. 15  United States Department of State, Bureau for International Narcotics and Law Enforcement, International Narcotics Strategy Report (Washington, D.C. 1996), pp. 325–329; talk of the Lithuanian ambassador, ‘Organized Crime and Political Shadows,’ Dr. Alfonsas Eidentas, Baltic Studies Conference, University of Chicago Harris School of Public Policy, May 3, 1996. 16  This was discussed in the paper of the Latvian attorney general, Janis Skrastinish, ‘Osobennosti razvitiia organizovannoi prestupnosti v stranakh Baltii’ at meeting of Europe 2000, 7–10 May 1996, Vilnius, Lithuania. 12  13 



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Most pernicious for these societies has been the penetration of organized crime into the banking sector. Both Lithuania and Latvia have experienced very serious banking crises in 1995–96 which have had a major impact on the national economies. There was very clear evi­dence of the role of organized crime in these crises, particularly in Lithuania.17 The Ameri­can government is now providing legal assistance in this area.18 Estonia has not yet had a financial crisis of such serious magnitude but research in that country reveals there have been many important and serious effects on the economy from organized crime groups.19 1.4. Central Asia The economic collapse of the Central Asian economies precipitated by the loss of subsidies from the Soviet state and the economic unrest of the region has made organized crime, in par­ticular drug trafficking, a viable financial alternative for many citizens. The limited economic resources of these successor states make them poorly equipped to fight the drug traffickers from Afghanistan and other Asian societies who have altered their drug routes to exploit the weakness of the newly independent Central Asian states.20 Facilitating this drug trade are professional criminals from Siberia and Kazakhstan.21 Approximately 100 kilos of opium are passing every day through the mountain passes of Kyrgyzstan but law enforcement there, as in most Central Asian states, lacks the capacity to address this drug trade.22 Kazakhstan’s organized crime shares many characteristics of the organized crime of Rus­sia. But the Islamic links of the society and their geographic proximity to Central Asia and China have an impact on their crime partners and forms of activity. The links to Moslem so­cieties means that professional prostitution rings operate in the Gulf States.23 While the Asian links facilitate the drug trade and money laundering to the financial centers of Asia.24

A. Eidentas, op. cit.; ‘Three Arrested in Lithuanian Bank Failure’, Reuter wire service, 21 December 1995. 18  Interviews with American legal officials in May and June 1996. 19  E. Raska et al. eds., Proceedings of the Estonian National Defense and Public Security Institute No.3 (Tallinn 1995). 20  ‘Kyrgyzstan: Guards Strengthen Operations to Halt Afghan Drug Flow’, FBIS-TDD-95-041-L 29 November 1995. 21  A. Zelichenko, ‘Would Kyrgyzstan Become the Next Colombia’, Kyrgyzstan Chronicle (23 August 1994) p. 4. 22  A. Zelichenko talk at the 10th Baltic Seminar in Estonia, May 23, 1996. 23  G. Isaeva, Kazakhstan: Reket, Moshennichestvo, Suternertsvo (Almaty 1995). 24  ‘Kazakhstan: Drug Trafficking Increases in Republic’, FBIS collection on Organized Crime in the Former Soviet Union and Eastern Europe Part II (August 1995) pp. 95–97. 17 

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louise shelley 1.5. Caucasus

Throughout the former Soviet Union, Caucasians control the markets and many of the kiosks. The Chechens have gained the reputation as the most brutal and visible crime groups of the former Soviet Union.25 Active in a territory ranging from Vladivostok to Western Europe, they engage in arms trafficking, many forms of smuggling, run prostitution rings and have perpetrated major bank frauds on Russian territory.26 The war in Chechnya was initiated on the pretext that organized crime had taken over the Chechen state and must be extirpated at its roots.27 While the Chechens have become synonymous with organized crime, many Caucasians are ‘thieves-in-law’, the elite of the criminal underworld.28 Caucasian criminality differs from that of other regions. Only a part of its activity is based in its home territory, much of its activity occurs outside its geographic base. Arms, guns and vehicular trafficking often occur outside the confines of the Caucasus although the Caucasian countries often provide import transit points for the goods. The large number of conflicts, the limited resources of the states and the corruption of the governments means that little action has been taken in these coun­tries to combat organized crime.29

2. The Consequences of Post-Soviet Organized Crime and Corrup­tion The combined problems of post-Soviet organized crime and corruption are undermining the transition to democratic and open free market economies. Organized crime is such a serious problem to the citizens of the successor states because they perceive they have been ‘robbed’ of the assets that they were to have inherited from the Soviet state. Instead of an emergent middle-class, almost all of the successor states have highly economically polarized popula­tions with a small extremely rich new elite and a large impoverished population. Living standards are higher in the Baltics and in Russia but even in these countries the sense that a crime has been committed against them by the old bureaucratic classes is no less acute. The concept of ‘mafia’ used to widely describe the rackets is not the most disturbing ele­ment of the crime problem. The alliance of the former Party S. Handelman, Comrade Criminal: Russia’s New Mafiya (New Haven 1995), pp. 49–52. S. Handelman, op. cit., pp. 207–223; A.G. Korchagin, V.A. Nomokonov, V.I. Shul’ga, op. cit., pp. 79–91. 27  O. Latsis, ‘Who Wanted this War’. Moscow Times 11 Jan 1995, p. 8. 28  G. Podlesskikh and A. Tereshonok, Vory v zakone:brosok k vlasti (Moscow 1994). 29  ‘Azerbaijan: Mafia Groups Settle Scores in Government’ and ‘Georgia: Clans Take Over State’, 44 Geopolitical Drug Dispatch (1995) pp. 1–3. 25  26 



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elite, members of the law en­forcement apparatus and the gangs of organized criminals has caused disillusionment among the citizenry and intense anger at the organized crime problem. Some analysts within Russia and the other successor states fear that the consequences of this corruption and crime is the creation of highly polarized Latin American style societies that will not result in consistent economic growth or long-term democracies.30 Corruption and organized crime cannot easily be differentiated. Much of the crime com­mitted combines access to information or goods held by government officials backed up by the use or threat of force by crime groups. The luxury apartments being bought by the new elite often become available after real estate firms bribe government personnel to learn of apartments occupied by vulnerable tenants (elderly, mentally ill, alcoholics). Then the en­forcers of organized crime force the tenants to leave by any means, up to, and including, mur­der. The precious metals exported through the Baltics have been appropriated by the Russian government officials managing these industries. But the shipments can be made only with the cooperation of the force of organized crime. The casinos set up throughout the former USSR to launder money may be run by crime groups. Yet the crime groups need to corrupt govern­ment officials to rent or buy the facilities housing the casinos and need to neutralize the law enforcement which might act against them. Organized crime activity is subsidizing the inter-ethnic conflicts in many parts of the for­mer Soviet Union. Drugs and arms trade is helping to finance the wars in Georgia, between Azerbaijan and Armenia and the civil war in Tadzikistan. The activities are more than just war profiteering. Critics in this region suggest that the financial interests of organized crime are impeding the resolution of the conflicts.31

3. The Soviet Legacy The Soviet legacy may be one of the most important factors explaining the present distribu­tion of organized crime in the successor states. The legacy is much more complex than an en­trenched shadow economy or an authoritarian tradition without respect for the rule of law. Deliberate social policies to control internal immigration, the failure to integrate ethnic groups into national leadership, the development of a large social control apparatus and the conscious governmental decisions of the final years of the Soviet period all contributed to the present-day crime patterns.

30  31 

Maggie Mahar, ‘Russia’s New Face’, Barron’s 10 June 1996, p. 34. ‘Azerbaijan: Mafia Groups Settle Scores in Government’, op. cit., p. 1.

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louise shelley 3.1. The Shadow Economy

The largest element of the Soviet legacy is that of the corruption and underground econ­omy.32 During the Soviet period, members of the shadow economy who operated throughout the entire USSR routinely bribed government officials in order to sell produce and law en­forcement officials were paid to look the other way or to halt prosecutions. In none of the successor states has there been lustration or the removal of former government officials. Therefore, the same government officials and the legacy of corruption endure. These government officials enjoy an even more economically privileged position today be­cause as property is redistributed in countries without laws on corruption or conflict of inter­est laws, key officials in the national and regional bureaucracies benefit enormously. They are still in a position to aid their long-term associates from the shadow economy with whom they are inextricably linked in complex financial relationships. Many of the traders who formed part of this economy were Caucasians and Central Asians who marketed their agricultural produce throughout the former Soviet Union. The goods were marketed particularly in urban areas. Therefore, whereas many large Soviet cities had relatively low rates of crime commission for street crime,33 large cities were magnets for the generally unprosecuted shadow economy. Major urban centers were key elements of the sha­dow economy because they had citizens who could afford the expensive foods and consumer items of the second economy. The bureaucrats who needed to be bought off were also usually located in the cities. 3.2. The Criminal Population The Soviet Union had one of the world’s highest rates of incarceration, a situation which en­dures in Russia today.34 Approximately ten million individuals, many of them politicals, were incarcerated during the Stalinist years. Among this enormous penal population were many professional criminals who in the pre-revolutionary era had formed a colorful and dis­tinctive world of organized criminal activity. The long periods of confinement and the brutal prison conditions led to the demise of much of the criminal underworld. Law enforcement officials estimate 32  M. Los, Communist Ideology, Law and Crime: A Comparative View of the USSR and Poland (London 1988); K.M. Simis, USSR: The Corrupt Society (New York 1982). 33  L. Shelley, ‘The Geography of Soviet Criminality’, 45 American Sociological Review (1980) pp. 111–22. 34  Obshchestvennyi tsentr sodeistviia reforme ugolovnogo pravosudiia, Poiski Vykhoda: Prestupnost’, U golovnaia Politika i Mesta Zakliucheniia v postsovetskom postranstve (Moscow 1996) pp. 53–60.



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that as little as 3%35 of the criminal population managed to survive the labour camps. But the massive criminal population allowed the traditional thieves to recruit a new generation of thieves. The labour camps provided a school for crime ensuring the endurance of the traditional elements of the Russian’s underworld.36 During the Brezhnev years, the prison and labour camp population totalled at least one and a half million individuals. Sentences were long and many lost touch with their families. Com­pounding their problems, those sentenced for serious crimes were prohibited residence in many major cities. After release, offenders often settled in the communities surrounding the labour camps, criminalizing cities in the Urals and Siberia. For example, Ekaterinburg, a major Russian city in the Urals near many labour camps, has a net annual influx of 4,000 criminals.37 With this criminal legacy it is hardly surprising that the Ekaterinburg mafia contributes disproportionately to Russia’s contract killings.38 Further­more, sociological research among Ekaterinburg’s organized criminals reveals that ties de­veloped in labour camps are more important determinants of gang organization than in cities such as St.Petersburg where membership of crime groups is more diverse.39 The Caucasian and Siberian gangs competing for control of the Far East are crime groups often formed out of those released from the Siberian labour camps.40 Yaponchik, a leading crime figure, recently tried in the United States had his original power base in Siberia where he settled after release from confinement. Soviet legislation affected the resettlement of ex-offenders in other ways. Although serious criminals were prohibited residence in most major cities, in an effort to promote Russifica­tion of the Baltics, the major and affluent cities of the Baltics were not off limits to those re­leased from labour camps.41 Convicted serious offenders from St. Petersburg could not return to their home community but could settle in the near-by Russian speaking city of Narva in Estonia. Presently one-quar­ter of the entire population of Narva has a criminal

35  V.G. Grib, et al. eds., Problemy Bor’ by s Organizovannoi Prestupnost’iu i korruptsei (Moscow 1995). 36  G. Podlesskikh and A. Tereshonok, op. cit., pp. 163–167. 37  Talk of Y. Voronin, Chair of Department of Criminal Law and Criminality at Urals State Legal Academy, on Russian Organized Crime sponsored by International Research and Exchanges Board, Washington, D.C. May 18, 1996. 38  For a discussion of recent conference sponsored by the Ministry of Interior on contract killings see ‘MVD nazyvaet avtorov zakaznykh ubiistv’, Interfaks-AIF 3–9 June 1996, pp. 1–29. The particular information on Ekaterinburg comes out of the research on the organized crime study center at the Urals State Legal Academy in 1995–1996. 39  Research presently being conducted by the organized crime study center at the Institute of Sociology, St. Petersburg. 40  A.G. Korchagin, V.A. Nomokonov, V.I. Shul’ga, op. cit., pp. 79–91. 41  L. Shelley, ‘Soviet Population Migration and Its Impact on Crime’, 13 Canadian Slavonic Papers (1982) pp. 77–87.

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record.42 In Tallinn, the figure is slightly lower, comprising approximately onequarter of the adult male population.43 The Baltic cities, particularly those of Estonia and Latvia, have a serious criminal legacy from the Soviet period. This fact helps explain the Baltic states’ integration into the overall organized crime prob­lem of the former USSR. On an official level, the Baltic states are seeking independence and autonomy from Russia. But their criminal populations enjoy the links established over years in the labour camps. It is these ties that help explain the facility with which criminals in Rus­sia can ship precious cargoes from Baltic ports and launder their money through Baltic banks. 3.3. The Social Control Apparatus A powerful law enforcement apparatus was established and maintained during the Soviet period. During the Brezhnev period, pervasive corruption became the norm among police ap­paratus. This corruption started at the very top with the Minister of Interior, Shchelokov, a close friend of Brezhnev’s and the deputy minister, his son-in-law Churbanov. Following Brezhnev’s death, Churbanov was tried and convicted for his links to Central Asian or­ganized crime. A phenomenon he allowed to foster because of the large pay-offs made to him and his entourage. The incarcerated ‘Central Asian mafia’ was released after Uzbek inde­pendence from the USSR. The corruption of the Central Asian elite and of the law enforce­ment apparatus is perpetrated in the post-Soviet period. Experts suggest that a very high per­centage of the law enforcement apparatus is receiving pay-offs from organized crime.44 Past and present members of the security police play an important role in organized crime activities of many of the successor states. With their international ties, knowledge of the banking system and of the capitalist world, they are better equipped than many former Soviet citizens to participate in complex illicit activities.45 In Latvia and Estonia, former members of the KGB have been particularly active in real estate markets. Their intelligence gathering skills have enabled them to acquire information on apartments that can be readily ‘vacated’ and their strong-arm techniques have promoted their acquisition of key property. The appro­priation of former Communist Party resources have given them the investment capital to renovate apartments and acquire large apartment blocks. 42  Remarks of the Estonian ambassador to the United States at the Baltic Studies Conference, University of Chicago Harris School of Public Policy, May 3, 1996. 43  Interview with Dr. Eduard Raska, rector Estonian National Defence and Public Service Academy and a leading Estonian criminologist, May 1996 in Tallinn, Estonia. 44  L.I. Shelley, Policing Soviet Society: The Evolution of State Control (London and New York 1996). 45  V. Ovchinskii, Mafia: Ne Obiiiavelennyi vizit (Moscow 1993) pp. 114–115; J.M. Waller and V.J. Yasmann, ‘Russia’s Great Criminal Revolution: The Role of the Security Services’, 11 Journal of Contemporary Criminal Justice 4 (1995) pp. 276–297.



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In Russia and Ukraine, the long-developed KGB skills of operating covertly and handling large illicit transactions have been exploited by the emergent banking sector. Former KGB personnel visible in key positions in major banks in Moscow are active in money launder­ing.46 3.4. Ethnic Minorities The hegemony of Slavs in the Soviet Union became increasingly pronounced in the final de­cades of the Soviet period. While non-Russians were allowed certain leading positions in the home republics, the reins of control were in Slavic cadres which took their orders from Mos­cow. Few non-Slavs were allowed positions on the Politburo, the top body of Communist power, nor did they assume many positions as heads of leading ministries. Consequently, members of different ethnic groups had limited access to top positions of power on the na­tional level and even were circumscribed in their access to power in their own republics. For the same reasons that ethnic minorities assume a disproportionate role in organized crime activity in the United States and more recently in western Europe, Caucasians and Cen­tral Asians contributed disproportionately to the leadership of organized crime groups in the USSR. Central Asians and Caucasians were also stigmatized because they possessed tradi­tional trading skills, outlawed in a socialist state. Therefore, it was more than their ethnic status which made these groups so prominent first in the second economy and now in or­ganized crime. The contribution of ethnic groups to organized crime is often overemphasized by Slavic policy makers who seek to blame Caucasians and Central Asians for the rise in organized crime. While their controls of markets, hotels and restaurants in major and even secondary cities makes them very visible, they are much less implicated in some of the most costly or­ganized crime activity in the banking sector, smuggling of precious metals and the criminal­ization of the privatization process. Yet crackdowns against organized crime such as occurred after the storming of the Russian parliament in October 1993 lead to scapegoating of ethnic minorities.47 3.5. The Final Soviet Period Many analysts suggest that organized crime emerged almost spontaneously from the collapse of the former USSR. This fails to acknowledge the distinct contribution of concrete measures taken in the final years of the Soviet period to the geography of post-Soviet organized crime. J.M. Waller and V.J. Yasmann, loc. cit, pp. 282–287. The report of the Office or the Russian Ombudsman was presented at a meeting of the Human Rights Commission under the President of the Russian Federation in Moscow on June 14, 1994. The report was entitled ‘O sobliudenii pray cheloveka i grazhdanina v Rossiiskoi Federatsii za 1993 god’. 46  47 

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The anti-alcohol campaign, initiated the month during which Gorbachev assumed office, contributed to a rise in organized crime activity particularly in Slavic regions with especially high levels of alcohol consumption. In Russia, Ukraine, and Slavic areas of Kazakhstan, pro­hibition facilitated the professionalization of bootlegging and the transfer of significant revenues to organized criminals.48 Subsidies to Central Asian states were reduced or eliminated with the collapse of the USSR. Drug production and trade became a viable means of survival in many impoverished Asian successor states. Khorog, a mountainous Kyrgyz border city, once received extensive subsidies directly from Moscow. Once these subsidies stopped, it rapidly became a major drug transshipment point.49 The violent suppression of ethnic conflicts in the final years of the Soviet period fueled conflicts that would continue after the collapse of the USSR. The violent measures used in Azerbaijan and Georgia, the unresolved conflict in Nagorno-Karabagh, in Moldova, and in the Ferghana Valley all created a continued market for arms.50 The ethnic conflicts are often sustained by other organized crime activity such as drug trafficking and automobile theft and smuggling. The large scale privatization of the state resources without appropriate legal safeguards has contributed to illicit activity in areas with large mineral resources such as the Urals and Sibe­ria, military-industrial complexes and valuable real estate.51 The penetration of organized crime into the privatization process began already in the late 1980s.52 It has reached its acme in Russia and Lithuania where privatization has proceeded fastest. It exists as a serious and still menacing problem in Ukraine, Kazakhstan and other Baltic states where further privatiz­ation is imminent. Organized crime is particularly evident in the privatization of valuable commercial and residential real estate in such cities as Moscow, St. Petersburg, Kiev, the Baltic capitals and Alma-Aty. The privatization of the fishing fleet in Vladivostok, as previously mentioned, has fueled the growth of organized crime in the Far East. The large and demobilizing military with access to the resources and weapons of the So­viet military have contributed to the violence of organized crime. Demobilizing military per­sonnel have been linked to organized crime activity in East Germany, the Baltics and in many of the successor states. Military personnel are implicated in high level smuggling of arms.53 L.I. Shelley, op. cit., pp. 148–149. A. Zelichenko, loc. cit., p. 4. 50  L.I. Shelley, op. cit., pp. 55–58, 70. 51  L.I. Shelley, ‘Privatization and Crime’, 11 Journal of Contemporary Criminal Justice 4 (1995) pp. 244–56. 52  S. Glinkina, ‘Privatizatsiya and Kriminalizatsiya’, II Demokratizatsiya 3 (1994) pp. 385–91. 53  S. Handelman, op. cit., pp. 208–210. 48  49 



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The rapid collapse of the Soviet Union without attention to the Russian population in the successor states has proved criminogenic. With rising nationalism and political instability in many of the successor states, many of the 25 million Russians in the so-called ‘near abroad’ have sought to return to Russia. But the government has provided inadequate resettlement allowances for individuals who left their homes in the successor states. Without access to housing and with serious impediments to the receipt of residence per­mits in desired cities (a prerequisite to legitimate state employment), many resettling Rus­sians have few work options other than in businesses dominated by organized crime. Repatriated Russians become the drivers of stolen vehicles across Poland or the executors of shady real estate deals. Many point to the absence of the rule of law and the collapse of existing state institutions to explain the proliferation of post-Soviet organized crime. Yet the rise of organized crime is more complicated and requires an appreciation of the legacy of the Soviet period. Soviet policies and those of the transitional states have contributed to the diversity of post-Soviet or­ganized crime.

4. Strategic Alliances with International Organized Crime Groups Organized crime in the Soviet period developed in relative isolation from the rest of the world. The authoritarian controls of the Soviet period did not provide inviting territory for foreign crime groups. Soviet citizens were unable to travel freely. The very significant growth of contacts and even strategic alliances with international crime groups is a very re­cent phenomenon facilitated by the declining control over foreign visitors to the successor states and the porousness of borders.54 Geographic proximity is a primary determinant of in­ternational contacts and will help shape the further development of organized crime in the diverse successor states. It will also contribute to the growing decentralization of the massive Russian state. Asian organized crime groups are most apparent in the Far East, Siberia and in Kazakh­stan. Japanese organized crime, the Yakuza, are most in evidence in the Primorskii Krai, a re­gion a mere two hours by air from Japan. Yet Chinese triads are in evidence there as in Kazakhstan and the Irkutsk region. Mongolia has become a transit point between China and the mineral rich region of Eastern Siberia. A Chinese market already exists in Irkutsk and the illicit drug trade accompanies that trade in cheap consumer goods. Export of capital from these regions often heads for Asian rather than European banking centers.55 V. Ovchinskii, Strategiia Bar’ by s Mafiei, pp. 94–95. A.G. Korchagin, V.A. Nomokonov, V.I. Shul’ga, op. cit., pp. 68–95; Observatoire Geopolitique des drogues, Geopolitiques des drogues 1995 (Paris 1995), pp. 59–60; conference on organized 54  55 

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In Eastern Russia and Ukraine, links with the Italian mafia are evident. An Italian or­ganized crime group attempted to open a bank in St. Petersburg, joint ventures have been opened in Ekaterinburg and the proliferation in Russia of Italian consumer goods are evi­dence of the links of Russian crime groups with Italian crime organizations.56 International drug traffickers are in evidence in many areas of the former USSR as a va­riety of international routes are developed. St. Petersburg women have been recruited as couriers by Nigerian drug traffickers and an African student recently died in Ukraine after the drugs he was carrying in a sack within his body leaked from their container. Similar contacts have been observed in Moscow.57 Links with Asian drug traffickers are particularly in evidence in Central Asia, Tadzikistan, Kyrgyzstan and Kazakhstan are all experiencing increased contacts with drug traffickers from Afghanistan, Pakistan and Southeast Asia. The problem has become so acute that the United Nations Drug Control Program (UNDCP) has now placed an official in Uzbekistan. The UN representative is monitoring not only local production but the large scale trafficking presently underway through the region. Caucasian crime groups are at a crossroads between Europe and Asia. They simulta­neously maintain contacts with criminal organizations from Europe and the Middle East.58 The rapid appearance of these groups in the successor states is evidence that organized crime groups rapidly discover regions in which there is an absence of legislation or effective law enforcement that would restrict their behaviour. Their proliferation in the former USSR since 1991 is shaping the evolution of crime in different regions. These ties are likely to en­dure and expand as international organized crime groups invest human and financial re­sources in the development of illicit trade links with these emerging markets for their goods and services.

5. Traditional Factors Facilitating Organized Crime The geography of post-Soviet organized crime is shaped by many of the same factors which traditionally shape organized crime – traditional trade routes, availability of ports and col­onies abroad which can serve as key building blocks for transnational activity.

crime in Irkutsk sponsored by the organized crime study center of the law faculty of Irkutsk State University, May 30, 1996. 56  ‘Mafia Money Laundering Practices Explained’, I Trends in Organized Crime 4 (1996) p. 96. 57  Igor Yudin, ‘The African Connections Hits Moscow’, 5 CJ Europe 3 (1994) pp. 7–8. 58  ‘The Nakhichevan Hub’, 44 Geopolitical Drug Dispatch (June 1995), p. 3; Observatoire Geopolitique des drogues, op. cit., pp. 23–46.



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With the breakdown of the centralized planning system of the Soviet period, the manufac­turers and traders of the Soviet period have quickly developed other sources of supply. Many of the successor states are turning outward rather than inward and the evolution of organized crime activity mirrors many elements of licit trade. The Baltic states are re-establishing trade routes long established by the Hanseatic league. Western Ukraine is re-establishing trade links with Poland and Austria. Turkey is reaching out to Turkic Central Asia. Yet these trade routes are carrying a diversity of illicit cargoes ranging from art to drugs, metals and wea­pons. Newly established links of the Soviet period are also facilitating illicit trading as drugs shipped through Kyrgyzstan and Kazakhstan are exported through the Baltic ports.59 The emergent drug trafficking from the former Soviet Union resembles the Latin American situ­ation in several important ways. Drug production occurs in highly undeveloped areas with no alternative sources of income by populations with a tradition of drug cultivation and con­sumption. Processing of drugs is done in neighbouring regions where there is a higher level of education and technology. The goods are then marketed in the most advanced countries. The profits made by these sales are then laundered in the countries where the drugs are sold or in others with advanced banking systems. The chain that runs from the poorest parts of Latin America through Colombia into Mexico and then the United States to the off-shore banking in the Bahamas is being replicated in the former USSR. The centrality of ports to organized crime activity is also evident in many parts of the for­mer USSR. Prime centers of organized crime activity are Tallinn and St. Petersburg on the Baltic Sea, Odessa, Sukhumi and the ports of the Crimea on the Black Sea and Vladivostok on the Far Eastern coast. Even in the Soviet period, these ports were distinguished by high rates of criminality. They are now focal points of criminal activity in Estonia, Russia and Uk­raine. Much violence has occurred as different crime groups have competed for control of the ports and their fleets. In St. Petersburg several prominent naval officials have been killed as crime groups have competed for possession of the privatized port. Post-Soviet organized crime is a transnational phenomenon, approximately one-quarter of the 6,000 known groups are believed to have international ties. From the 1970s to 1990s over a million Soviet citizens emigrated to the United States, Canada, Israel and Germany. Smal­ler émigré communities can be found in Africa, other parts of Europe, Latin America, Austra­lia and even in parts of Asia. Although most of the emigrants were law abiding, there were criminals among them who retain close links with their homeland. Like the internationaliza­tion 59  Anna Kozyreva, ‘Along the Path of Drug Mafia; Opium Dealers Easily Penetrate CIS Countries’ “Transparent Border”, translated in FBIS Organized Crime in the Former Soviet Union and Eastern Europe Part I (1995) pp. 141–143.

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of Italian organized crime, the émigrés influence the crime patterns of the home com­munity and the home communities provide a constant source of new blood for the criminal populations of the émigré colonies. The international links of the organized crime communities contribute to the distinctive re­gional differences of post-Soviet organized crime. The western parts of Russia, Ukraine, the Baltics and Belarus have the closest ties to Europe, Israel and the United States. Armenians have close links with émigré communities in California and other parts of the Armenian dias­pora. Countries like Uzbekistan and Kazakhstan, more removed from western contacts, still have significant contacts with émigré communities in Israel. These contacts facilitate money laundering and can be used to facilitate both licit and illicit trade. International contacts of organized crime groups are by no means limited to émigré com­munities but they provide experience and contacts for their counterparts in the successor states. The exchange of experiences is introducing sophisticated western financial crimes into even remote parts of the former USSR.

6. Adaptability and Flexibility Organized crime groups reveal adaptability to their new environments. Many Russian, Cen­tral Asian and Caucasian members of organized crime work outside their region or country of origin. They are mobile and can diversify to take advantage of new opportunities. Russians and Caucasian criminals are adapting to Baltic life, acquiring sufficient language proficiency that even the stringent language requirements are no impediment to the acquisi­tion of Estonian citizenship by some leading members of organized crime. Their adaptation is more than linguistic. In Estonia, where the citizenry values cleanliness, citizens will buy only at clean food stores and profits will be high only at sanitary establishments frequented by citizens. Because the take of organized crime is determined by the profits of an individual business, organized crime makes more money when an establishment observes health norms and attracts customers. Therefore, organized crime figures do not obstruct the work of health inspectors in Tallinn food markets and stores. In contrast, in Russia where citizens do not share this concern for sanitation standards, the health inspector is just one more official on the list of government personnel to be bribed by organized crime officials controlling the consumer markets.

7. Conclusion All the regions of the former Soviet Union could significantly reduce their organized crime problem by developing viable legal systems and tax policies,



criminal kaleidoscope

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enforceable contracts and con­trols on governmental corruption.60 Anti-organized crime strategies, however, can be effec­tive only if they are predicated on understanding the heterogeneity of post-Soviet organized crime. They must target the distinctive problems of specific regions at the same time that they try and promote the long-term development of the rule of law. Only by understanding the regional differences in organized crime can the long term con­sequences of organized crime be assessed. Is organized crime more likely to be a transitional phenomenon in the Baltics? Will these states with fewer years of Soviet rule be able to com­bat organized crime and make the successful transition to viable market economies based on rule of law? Will the incipient democracy of Kyrgyzstan meet the same fate as Colombia? Will the huge resources of the drug traffickers corrupt the Kyrgyz government to the same degree as in Colombia?61 Many observers see organized crime as developing out of the chaos of the collapsing So­viet state. Yet the regional differentiation of the organized crime phenomenon suggests that crime is responding to the same forces shaping the rest of the society. Distinctive regional differences in all aspects of daily life are emerging as the enforced uniformity of the cen­tralized authoritarian Soviet state rapidly becomes history. The diversification of organized crime in the successor states and Russia mirrors the changes occurring in all aspects of these societies. This suggests that organized crime is not just a response to chaos but a differentiated phenomenon emerging from the Soviet state. The observed differences should become more pronounced over time as links with foreign crime groups influence patterns of behaviour within the successor states. The Soviet past contributed very significantly to the diversity of post-Soviet organized crime. The inability and unwillingness of many successor states to address the organized crime problem may permit its unimpeded development in coming decades. Just as the Soviet citizens in the past helped perpetuate the controls of the Soviet state, the present passivity against the growing power and entrenchment of organized crime may usher in a new form of authoritarianism with very severe long-term consequences for the citizenry.

60  A. Nechayev, ‘The Tax System is Pushing Business Toward Withdrawing into the Shadow Sector’ translated in FBIS Organized Crime in the former Soviet Union and Eastern Europe Part I (August 1995) pp. 55–57. 61  A. Zelichenko, loc. cit., p. 4.

Twenty Years Ago: The Assassinations of Giovanni Falcone and Paolo Borsellino Cyrille Fijnaut Professor emeritus, Tilburg Law School, Tilburg University, Tilburg, the Netherlands

Some people remember it as if it were yesterday. Others have only heard stories. Whatever the case, in the spring and summer of 1992, the Sicilian Mafia mercilessly struck down two prosecuting magistrates who had been waging a major, innovative, and hence successful war against organized crime since the nineteen eighties. On 23 May 1992, Giovanni Falcone, his wife and three bodyguards were killed by a car bomb near Palermo. A few weeks later, on 19 July 1992, Falcone’s friend and colleague Paolo Borsellino was murdered in the same manner. The assassinations prove beyond a doubt that the Sicilian Mafia is not only capable of controlling legitimate and illegitimate markets – and hence all of society – but is also prepared to use intimidation and brute force against any government that attempts to break its grip.1 As a result of these attacks, the Italian government modernized the weaponry that it used against the Mafia and transformed its battle into a formidable and indeed successful offensive by the Italian State as such. For example, since the early nineties Italy has not only made more use of judicial means (for example the pentiti) to undermine the power of Mafia groups, but it has also deployed administrative weapons to systematically force the Mafia out of legitimate economic sectors.2 It obviously had more than the Sicilian Mafia in its crosshairs. Other Mafia groups – in particular the Neapolitan Camorra and the Calabrian ’Ndrangheta – had been extending their illegal practices, both in type and number, in Italy and abroad since the nineteen sixties, and had also become quite 1  For more information on the life and work of Giovanni Falcone, see V. Delle Donne, Falcone. Die Biographie. Leben und Tod im Kampf gegen die Mafia (Frankfurt/Main: Ullstein, 1993). See also A. Jamieson, “Giovanni Falcone – In Memoriam”, 16 Studies in Conflict and Terrorism (1993) 303–313. 2  A. La Spina, “The Paradox of Effectiveness: Growth, Institutionalization and Evaluation of Anti-Mafia Policies in Italy”, In C. Fijnaut and L. Paoli (eds.), Organized Crime in Europe. Concepts, Patterns and Control Policies in the European Union and Beyond (Dordrecht: Springer, 2004), pp. 641–675.

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powerful.3 Between 1992 and 1994, officials carried out twelve major operations against the ’Ndrangheta. They arrested some 700 suspects and identified the perpetrators of 165 murders.4 The assassinations of Falcone and Borsellino not only had a huge impact on Italy’s policy on organized crime, however. They also drove the European Union to launch more specific efforts to combat organized crime, in line with measures that had already been introduced within the context of the Schengen Agreement or incorporated into the Maastricht Treaty (such as the establishment of Europol). For example, in September 1992 the European Union set up an Ad Hoc Working Group on International Organized Crime. In 1993, the Working Group completed two key (unpublished) reports in which it proposed a range of improved strategies to combat organized crime.5 It took another four years, however, before a more or less coherent policy plan was published in the Official Journal (15 August 1997), i.e. the Action Plan to Combat Organized Crime. Why it took five years for the plan to materialize is not entirely clear. One reason may be that the Member States generally disagreed about how serious the problem of the Italian Mafia was in the territory of the European Union, and therefore about whether the Mafia – and organized crime in general – in fact represented a serious threat to the Member States as a group.6 Was organized crime in the guise of the Mafia not an Italian problem, and was it therefore necessary and even sensible to turn the battle against the Mafia into an EU-wide affair? It took another assassination – the victim this time was journalist Veronica Guerin, who was murdered in Dublin in November 1996 – before the Dublin Summit on 13–14 December 1996 convened a High Level Group of Officials to draft a joint policy leading a few months later to the above-mentioned action plan. This in any event answered the above question: Guerin’s murder showed beyond a shadow of a doubt that organized crime was not simply Italy’s problem. Falcone himself believed that the problem of the Mafia was not confined to Italy, but in fact affected all of Europe, and in particular the European Union. He made his views clear in November 1990 at an international symposium held at the Federal Criminal Police Office in Wiesbaden, Germany.7 In essence, he 3  For the history of the ’Ndrangheta in this period, see P. Arlacchi, Mafia, Peasants and Great Estates. Society in Traditional Calabria (Cambridge: Cambridge University Press, 1983) and Mafia Business. The Mafia Ethic & the Spirit of Capitalism. London, Verso, 1986. See also J. Walston, The Mafia and Clientelism. Roads to Rome in post-war Calabria (London: Routledge, 1988), and L. Paoli, Mafia Brotherhoods. Organized Crime, Italian Style (Oxford: Oxford University Press, 2003). 4  L. Paoli, “An Underestimated Criminal Phenomenon: The Calabrian ’Ndrangheta”. 2 European Journal of Crime, Criminal Law and Criminal Justice (1994) 212–238. 5  See C. Fijnaut and L. Paoli (eds), op. cit., pp. 633–635. 6  See for example M. Anderson, “The United Kingdom and Organized Crime – the International Dimension”, 1 European Journal of Crime, Criminal Law and Criminal Justice (1993) 292–308. 7  G. Falcone, “La Criminalité Organisée: Un Problème Mondial. La Mafia Italienne en tant que Modèle pour la Criminalité Organisée Opérant à Niveau International”, 45 Revue Internationale



twenty years ago: assassinations of falcone and borsellino 63

argued that Sicilian and Calabrian migrants had taken the Mafia with them when they immigrated to Belgium, France, Germany and elsewhere. He also pointed out that by eliminating its internal border controls, the European Union would inevitably ease the spread of Mafia-like practices in these and other European countries. Finally, he emphasized that a European version of the Cosa Nostra would not be an exact copy of the Italian original because it had to operate in a different cultural and political setting. That did not make it less dangerous, however. In addition, criminal groups in other Member States would increasingly pattern themselves on the Italian Mafia by attempting to infiltrate government and the legitimate economy and using all sorts of violent practices against government officials, for example. What we must also bear in mind in this connection is the growth of the American Cosa Nostra in the United States since the end of the nineteenth century. The rise of this American version of the Italian Mafia was not the result of a conscious desire to transplant key members of the Sicilian, Neapolitan or Calabrian Mafia to the New World. That does not mean, however, that important Mafiosi who immigrated did not play a significant role in building the American Cosa Nostra, or that strong ties did not continue to exist between the clans in Italy and the Mafia families in the United States. Some of the Mafiosi did play such a role, and such ties were important for all sorts of reasons – and remain so today.8 We must also not disregard the fact that General Mori’s violent campaign against the Sicilian Mafia in around 1930, waged with Mussolini’s blessing, ironically led to a virtual exodus of Mafiosi to the United States, unintentionally swelling the ranks of the Cosa Nostra there.9 Is it not possible that the celebrated operations conducted by Falcone and his colleagues had a similar effect: an exodus of Mafiosi not only to North America but also to other parts of Europe? And, having forged ahead with his operations despite this potential effect, did Falcone also argue for a more united, European approach to the problem for that reason? After all, in the long run it would only be a united approach that could guarantee lasting success in Italy for him and his colleagues. Whatever the case, since then Italian magistrates, police officials and journalists have echoed Falcone in arguing that the Mafia is growing increasingly active across Europe, and that it poses such an enormous threat to the entire de Criminologie et de Police Technique (1992) 391–398. See also M. Padovani and G. Falcone, Cosa Nostra. Le Juge et les “Hommes d’Honneur” (Paris: Editions1/Austral, 1991), and G. Falcone, What is the Mafia? Four Essays on Organized Crime, 1984–1990 (Milan: Sansoni Editore, 1994), pp. 22–38. 8  Sources that discuss the origins of Cosa Nostra: D. Chritchley, The Origin of Organized Crime in America. The New York City Mafia, 1891–1931 (New York, NY: Routledge, 2009), and R. Lombardo, The Black Hand. Terror by Letter in Chicago (Urbana, IL: University of Illinois Press, 2010). 9  Ch. Duggan, Fascism and the Mafia (New Haven, CT: Yale University Press, 1989).

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Continent that only a united European force, for example a European task force, can combat it.10 Their claims are supported not only by gangland murders – for example those in Duisburg on 15 August 2007, when six people were killed by members of a ’Ndrangheta clan – but also by the arrests of Mafiosi across Europe; see for example the recent reports in SpiegelOnline (5 February 2011) and ZeitOnline (8 March 2011). And yet, it is more difficult than it seems to agree instantly with these Italian experts. Why? No one doubts that Mafiosi have been and still are hiding from the Italian law enforcement and judicial authorities in Belgium, France, Germany, the Netherlands, and elsewhere. They have also unquestionably been involved in illegitimate practices in these countries for many years, for example the narcotics trade and money laundering. It is furthermore clear that they make use of legitimate channels, for example restaurants and transport firms, to facilitate and camouflage their illegal practices.11 Nevertheless, there are many who believe that the Italian experts have overlooked a few key differences between Italy and other West European countries, and that they too easily assume that circumstances prevalent in Italy are also common, or could easily become so, in the “rest” of Europe. The first difference is that the Italian Mafia has never been observed to exercise control, let alone a monopoly, over companies in certain sectors of the economy or to systematically extort companies or industries in particular cities or regions elsewhere in Western Europe or in the European Union, in the manner common in southern Italy. The second difference is that organized crime – let alone the Italian Mafia – has never managed to infiltrate political parties, trade unions or government bodies at any level outside of Italy (for example by manipulating votes, corrupting decision-makers, infiltrating the public service, or setting up its own freemasonry lodges). And the third difference is that the Italian Mafia is so intertwined with the political, economic and cultural history of southern Italy that it can never thrive outside the borders of this country in the same way as it does there.12 See for example F. Forgione, Mafia Export (Amsterdam: AMBO, 2009), pp. 80–145. Also see the interviews in NRC-Handelsblad with N. Gratteri (28 May 2009) and R. Scarpinato (30 September 2010). 11  For Germany, see for example: A. Ulrich, Das Engelsgesicht. Die Geschichte eines Mafia-Killers aus Deutschland (Munich: Goldman, 2007), and Die ’Ndrangheta in Deutschland (Wiesbaden: Bundeskriminalamt, 2011). For the Netherlands: KLPD – National Crime Squad, The ’Ndrangheta in the Netherlands. The Nature, Criminal Activities and Modi Operandi on Dutch Territory (Woerden, 2011). For France: F. D’Áubert and B. Gallet, Rapport de la Commission d’Enquête sur les Moyens de Lutter contre les Tentatives de Pénétration de la Mafia en France (Paris: Assemblée Nationale, 1993), No. 3251. For Belgium: C. Bottamedi, La Mafia en Belgique. Lutter contre le Crime Organisé (Ottignies: Quorum, 1997). 12  Good sources in this connection: P. Reski, Mafia. Von Paten, Pizzerien und falschen Priestern (Munich: Droemer, 2008), and N. Gratteri and A. Nicaso, Bloedbroeders. De Geschiedenis, 10 



twenty years ago: assassinations of falcone and borsellino 65

These and other differences can, of course, be debated, just as we can debate the similarities mentioned. For example, with respect to the third difference, we could argue (and Falcone would agree with us) that, although the Mafia is indeed intertwined with Italian history, this does not mean that it or in any case individual Mafiosi are incapable of adapting to other political, economic and cultural circumstances. The rise of the Cosa Nostra in the United States until the late twentieth century is the best example of this. It also shows that a government that is prepared to spend several decades systematically fighting the Mafia families with sufficient force can severely restrict the power of these clans.13 It is only useful to discuss the spread of the Italian Mafia throughout Europe if all of those participating in the discussion are well informed of the situation in one another’s countries. Because this strategic condition has so far not been met, however, such discussions quickly deteriorate into mere contradiction, and may unintentionally create more divisions between the Member States concerning the seriousness of the Mafia problem in their territories and what steps ought to be taken, both nationally and internationally, to combat it. It would therefore be wiser to conduct an in-depth investigation into the spread of the Italian Mafia in the European Union. The results could provide a solid basis for an impartial discussion of these two closely related topics. In view of the complexity and sensitivity of this issue, the investigation should preferably be carried out by a multinational research group. The core would be made up of experienced empirical researchers from the Member States most closely involved. They should conduct their investigation according to the same analytical plan. The plan should focus equally on the criminal activities carried out by Mafia groups in the territories of the individual countries and the relationships between these groups at European and international level. The researchers should obviously have the same access to data held by law enforcement bodies, the tax authorities, the public prosecutions service and local governments in each of the countries concerned, subject to the same conditions. The funding required to support such an investigation would have to come from the European Commission, acting in consultation with the European Council. In keeping with the spirit of the Lisbon Treaty, the European Parliament should cooperate with the national parliaments to provide the necessary political support for such an initiative.

de Verhalen, de Bazen en de Business van de ’Ndrangheta, de Machtigste Mafiaclan ter Wereld (Amsterdam: Lebowski, 2009). 13  See the studies by James B. Jacobs: Busting the Mob. United States v. Cosa Nostra (New York, NY: New York University Press, 1994), and Gotham Unbound. How New York City was Liberated from the Grip of Organized Crime (New York, NY: New York University Press, 1999).

2. The Crime Problems in Central and Eastern Europe

Social Changes and Rising Crime Rates: The Case of Central and Eastern Europe1 Miklós Lévay Professor of Criminology and Criminal Law, Director of the Institute of Criminal Sciences University of Miskolc, Hungary

1. Introduction At the 11th International Congress on Criminology in Budapest (Hungary), Professor Hans-Jürgen Kerner addressing the closing session, among others, said that: ‘… many of the ‘obvious’ problems concerning the crime causes and the attitudes against them are much more complicated than we could have thought. This means that the International Society for Criminology has had to face the ancient truth of the hard(natural)-sciences so that it often seems more promising to try and find the right questions again and again than trying to find the solution to the problems right away’.2 If we compare the slogan of the 11th Congress – Socio-Political Changes and Crime: The Challenge of the 21st Century – with that of the present one in Seoul – Crime and Justice in a Changing World: Asian and Global Perspectives – we can observe that our Society is in line with Professor Kerner’s directions, we would like to learn more than our present knowledge about the same problem by asking further questions. This problem is the relationship between the changes and crime. The distinguished interest in the field is well established as it is common knowledge in criminology that the changes in society always go hand in hand with the alterations of the previous characteristics of crime while the patterns of crime seem to reflect the changes and their contents. That is why the typical 1  Revised version of the paper presented at the Plenary Session II-2 of the 12th International Congress on Criminology (24–29 August 1998 Seoul, Korea). 2  H.J. Kerner, ‘Elméleti és kutatási témák a nemzetközi kriminológiában’ (Theoretical and Research Topics in International Criminology), in K. Gönczöl (ed.), A társadalmi-politikai változások és a bûnözés. A 21. század kihívása. Válogatás a 11. Nemzetközi Kriminológiai Kongresszus elõadásaiból, selected papers of the 11th International Congress on Criminology (Budapest 1993) p. 187.

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questions concerning our discipline emerge again and again whenever social changes take place. So, for example, what is the relationship between the alterations of the previous patterns of crime and the changes concerned, or what elements of the changes affect crime. Furthermore, the era passed since the appearance of positivist criminology in the first three decades of the 19th century has repeatedly produced the social facts needed for the scientific study of the subject. In the past decade in Western Europe these changes were generated by the integration, and in the so-called socialist countries, the collapse of the previous regime and the economic crisis in Asia. This paper discusses the questions concerning the problems of crime and changes following the collapse of the so-called socialist regime in the ‘Eastern Block’ in the 1980s. The changes have affected about 350 million people. The changes, which concern about nine former socialist countries have several common features due to the organic characteristics of the Block. At the same time we can observe significant differences in the changes taking or having taken place in the different countries of the collapsed system. The differences may be rooted in the different history and cultural traditions, level of development, as well as how deviating from the socialist principle a member country was. The present also creates differences in the success of the break away from the past, the procedure of the accomplishment of the new political system and in what conditions the changes take place. On the basis of the above principles, the Eastern-Central European countries, namely the Czech Republic, Hungary, Poland, Slovakia and Slovenia form a separate group of the formal socialist countries.

2. Demographic and Economic Characteristics The important demographic and economic characteristics of the five countries above are shown in Table 1. The article focuses on the crime situation during the transition of these countries and discusses the questions of the relationship between the changes and crime, on the basis of the development of crime, in the course of the changes in the so-called socialist system. First of all, I will briefly refer to the most important factors which support that the countries mentioned form a separate group among the countries concerned with the changes and it is preferable to deal with them separately. From the point of view of their common cultural and institutional traditions it seems worth mentioning that all of the five countries used to belong to the Habsburg Empire (1867–1918) and as such share a common heritage.3 3  See C. Offe, ‘Cultural Aspects of Consolidation’, 4 East European Constitutional Review (1997) p. 66. 6.



social changes and rising crime rates

71

Table 1. Statistical data on Czech Republic, Hungary, Poland, Slovakia, and Slovenia for the year of 1996 4 Population [M]

Territory [1000 km2]

GDP/capita [US$]

Unemployment rate [%]

Czech Republic

10.3

078.9

5,446

03.5

Hungary

10.2

093.0

4,410

10.7

Poland

38.6

312.7

3,490

13.5

Slovakia

5.4

049.0

3,536

12.6

Slovenia

2.0

020.3

9,493

13.9

Country

As to their deviating from the socialist standards we can say that all it means in the case of the Czech Republic and Slovakia the predecessor-state Czechoslovakia and Yugoslavia in the case of Slovenia, tried to humanize, reform and partially modernize the Stalinist and then the following Soviet model of socialism. Concerning the advancement in the development of the changes, all of the five countries meet the double standard of successful change written in the literature of the political sciences: a) the stable functioning of the judicial and constitutional order and b) the irreversible transition to private capitalism plus economic growth.5 We cannot, however, escape from referring to some further facts. First it should be mentioned that Slovakia can only be grouped among these countries with some reservations as it does not fully meet the double standard. At the same time the former German Democratic Republic does not belong to the group although its transition is successful. It seems, however, that the token of the successful transition, in the case of this country, is not so much the collapse of the previous regime but the union with Germany. That is why, despite the several common characteristics with the other Central-Eastern European countries, the study of the transition of this country should be considered as a different case. It is also worth mentioning that the five countries have developed several differences in the course of the transition, which refers to the development of crime since the beginning of the changes as well. The paper primarily focuses on the common features but, when necessary, it will touch upon the significant differences concerning crime as well. 4  5 

Source: Central European Quarterly I/98. C. Offe, loc. cit., p. 66.

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3. Crime in the Czech Republic, Hungary, Poland, Slovakia, and Slovenia Since the End of 1980 One of the most important common features of the changes following the collapse of the ‘socialist’ system is a sudden rise in the number of crime and the change in its structure. Table 2 shows the number of registered crimes in the ratio of 100,000 citizens in the countries concerned. The feature mentioned above, dramatic rise, can at once be seen. It is worth noting that the rise in the number of reported crimes was rapid at the beginning of the transition, it almost doubled. In a single year, following 1989, the year of the ‘velvet revolution’ in the then united Czechoslovakia, the number of reported crimes increased by 20%; in 1989, when the ‘round-table talks’ started between the representatives of the opposition and the past regime in Hungary, the number of reported crimes was approximately 225 thousand which increased to almost 350 thousand a year later, in the year of the first free elections after more than forty years. In Poland, the ratio of number of crimes per 100 thousand citizens increased by 62% from 1989 to 1990 as well. At the turn of the decade the rate of increase was similar in the other countries concerned, too. In Slovenia, however, the massive increase took place during the years of the preparation for independence, and winning it in 1991 and 1992. Before going into further details of the tendencies and patterns of crime, it should refer to a question which often emerges in the course of the investigation of the causes of the sudden and dramatic increase in the number of crimes in the former ‘socialist’ countries. The question concerns the validity of the statistics in ‘socialism’; in other words: was it not the falsificated statistics that showed a low ratio of crime when, in reality, the rate was high and, owing to the above, the sudden increase during the transition is just illusive.6 The question is well justified as the problem of crime was predominantly a question of ideology in most of these countries or a question of ideology. The reason is that the politicians, and at the same time ideologists of the regime, published the statistics revealing a low rate of crime as evidence of the superiority of the ‘socialist’ system over capitalism. Actually, despite this it would be a rather simplified and unrealistic interpretation of the facts to explain the increase in the number of crimes on the basis of the manipulation of statistics exclusively. There is no denying that we would come across a large scale of anomalies concerning the statistics of crime in the socialist countries from the manipulation

6  See for example M. Eisner, ‘The Effects of Economic Structures and Phases of Development on Crime’, in XXXII Crime and Economy (1995) pp. 13–51.



social changes and rising crime rates

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Table 2. Mean Rates of Registered Crimes per 100,000 population for the years 1986–1989 7 and Rates of Registered Crimes per 100,000 population in 1990, 1992, 1994, 1997 8 Country

1986–1989

1990

1992

1994

1997

Czech Republic

1,200**

2,100**

3,400**

3,700**

—

Hungary

1,843

3,287

4,326

3,790

5,056

Poland

1,367

2,313.5

2,293.4

2,348.7

2,600

Slovakia

879*

—

—

2,500**

1,700**

Slovenia

1,911

1,900**

—

2,307***

* 1989.  ** Approximately.  *** Mean rate for the years 1991–1994. 78

of data to the restriction of access or processing.9 It is also a fact that the not too numerous dark-figure surveys render a higher level of crime than those published officially and the surveys in victimology following the change of the political system indicate an increasing activity in the reports.10 In spite of the above, and with regard to the characteristics of the past regimes to be discussed below, we can agree with those, among others, with Joachim Savaelsberg or Josef Zapletal, who emphasize that the sudden and steep increase in the number of crime during the transition may not be explained by the manipulation of data in the past or the change in the reporting and registering activities of the police.11 The level of crime was really low, much lower than today, in the so-called socialist era. A low level of crime was a real characteristic of the

7  Source: J. Jasinski, Crime: manifestations, patterns and trends of crime (‘traditional’ versus ‘new’ crime; juvenile crime), fear of crime, paper presented at the Twenty-First Criminological Research Conference of the Council of Europe (Strasbourg, 19–22 November 1996). 8  Source: National Crime Statistics. 9  See E. Bienkowska, ‘Crime in Eastern Europe’, in F. Heidensohn, M. Farrell (eds.), Crime in Europe (London 1991) p. 43. 10  See L. Korinek, Félelem a bûnözéstõl (Fear of Crime) (Budapest 1995). 11  J.J. Savelsberg, ‘Crime, Inequality, and Justice in Eastern Europe’, in J. Hagan, R.D. Peterson (eds.), Crime and Inequality (Stanford, California 1995) p. 208; J. Zapletal, ‹Bûnözés a rendszerváltás elõtt a Cseh Köztársaságban és ennek feldolgozása a rendszerváltás után’ (Crime before Changing the Regime in the Czech Republic and Interpretation of, at that Time, Crime Situation after Changing the Regime), in F. Irk (ed.), Társadalmi átalakulás és bûnözés (Social Transformation and Crime), Hungarian-German Criminological Symposium: 20–25 August 1995 (Budapest 1997) pp. 78–83 (78).

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previous regime as ‘the public security of the dictatorship is not a fairy-tale but reality’ as an Hungarian expert reminds us.12 On the basis of the above, we can now reject the convenient explanation to find the causes of the increase in the number of crimes in the manipulation of the statistics of the past regime. Neither can crime be regarded as a certain wave of criminalization following the transition or as a series of legal action against the people practicing power in the socialist era. The former could not have existed because at the beginning of the transition, in the course of a liberalizing criminal policy, in accordance with Herbert Packer’s ‘due process’ model 13 decriminalization dominated the criminal policy of the countries concerned.14 The so-called retroactive justice, that is, legal actions against the people practicing power in the past regime or against the ones committing then legal, but now deemed as illegal deeds, was hardly ever applied in these countries. The increase in the number of crime is not illusive but realistic, it is inseparable from the transition or, as Fritz Sack describes it ‘crime is one of the determining characteristics of social change’.15 It should also be emphasized, that the starting point of the increase in crime in the countries concerned is not the collapse of the socialist regime. In Czechoslovakia, for example, the slow rise of crime started in the middle of the 1980s. By the middle of the eighties the rate of crime had significantly increased, compared to the end of the seventies in Poland. In Slovenia, it was also in the first-half of the eighties that crime increased, while in Hungary, it had been increasing since 1980. What can, however, be connected to the transition is the abrupt rise and the change in the structure of crime. The dynamics of the increase in the countries of the transition shows significant differences compared to the rate of increase characteristic in Western Europe. During the half-period, that is the time during which the number of crimes per 100,000 citizens doubles, in Western Europe it took about 15 years per doubling period between 1950 and 1995, but it took a shorter time in most countries of the transition.16 Table 2 shows that, except for Slovenia, the half-period took a G. Finszter, ‘A rendõrség beilleszkedési zavarai’ (Adaptation Disturbances of Police), Rendészeti Tanulmányok, no. 2 (1994) pp. 5–41 (24). 13  H.I. Packer, The Limits of the Criminal Sanction (Stanford 1969). 14  See M. Lévai, ‘Társadalmi-politikai változások, bûnözés és a bûnözés elleni fellépés KözépKelet Európában’ (Social-political changes, Crime and Crime Control in Central and Eastern Europe), in K. Gönczöl, op. cit., p. 116. 15  F. Sack, ‘Társadalmi átalakulás és kriminalitás’ (Social Transformation and Crime), in F. Irk (ed.), Társadalmi átalakulás és bûnözés (Social Transformation and Crime), Hungarian-German Criminological Symposium: 20–25 August 1995 (Budapest 1997) pp. 95–132 (129). 16  See M. Eisner, loc. cit.; I. Kertész, J. Stauber, ‘Magyarország Európa bûnügyi térképén’ (Hungary on the Crime Map of Europe), 9 Magyar Jog (1996) pp. 519–530; M. Killias, Crime Policy in the Face of the Development of Crime in the New European Landscape, paper presented at the Fifth Conference of the Council of Europe on Crime Policy (Strasbourg, 27–29 November 1995). 12 



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maximum of 10 years, but in the case of the Czech Republic, Hungary and Slovakia, it took even a shorter time to double. Imre Kertész, an Hungarian criminologist, proved that in Hungary for example, the first doubling of the half-period took almost 21 years (between 1971 and 1990), while the second one was completed only in 5 years, between the second half of 1990 and the end of 1995.17 Jerzy Jasinski in his paper at the Criminological Research Conference of the Council of Europe in 1996, presented the data of the rate of crime between 1986–1989 and 1991–1994, in 13 further countries besides the ones subject to this paper.18 The data reveal that in seven countries out of the 13 the rate of increase is more than twofold (Moldavia, Bulgaria) and in two further ones (Russia, the Ukraine) it is almost twofold. The increase showed a peculiarly high tendency in the first few years of the transition, after which its rate slowed down and in Poland it even decreased. 3.1. Change of the Structure Besides the dramatic increase in the number of crime, the second important feature of the characteristics of crime in the countries of the transition is the change of the structure of the crimes committed, namely the significant increase in the number of property crimes. While the ratio of property crimes in contrast to the total amount of crimes in the countries concerned was 60% in the eighties and almost 70% at the end of the eighties, in the nineties, with the exception of Slovenia, it was almost 80%. The increase was characteristically due to the increase in the number of thefts and burglaries. The third common feature of the countries concerned, the significant decrease in clearance rate, can basically be explained by the dramatic increase in the number of crimes and that of the property crimes. The ratio of clearance in these countries was 60% even in the second-half of the eighties. In some countries, Czechoslovakia, for example, it was above 80%. In contrast to that, the ratio of clearance is not higher than 50%, the maximum in the nineties. In Hungary, for example, from the 514 thousand reported crimes in 1997, the offender remained unknown in 254 thousand cases. The fact that the ratio of the number of sentenced offenders, in comparison with the eighties, increased much slower than could have been expected on the basis of the rate of the increase in crime in the countries of the transition, can also be explained by the decline in the efficacy of the clearance. Mention must be made of the new phenomenon of the increase of the role of violence in the field of crime which partly means the increase in the number of violent crimes and partly the increasing frequent appearance of brutality in the 17  18 

I. Kertész, J. Stauber, loc. cit., p. 520. J. Jasinski, op. cit., p. 6.

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methods. The number of homicides has increased in all the countries with almost no exceptions in the last years. In Poland, the number of homicides was 556 in 1989, and in 1994 it rose to 1160, while in Hungary, it was 191 and 313 in the same years. The characteristics of homicide has also changed to a certain extent. While, up until the end of the eighties, homicide in these countries had typically been committed on emotional grounds, or resulted in conflicts in which the victim and the offender had known each other, very often married or living together, now the number of homicides committed to a person unknown to the offender, or homicides having the characteristics of reckoning have been increasing. The latter feature leads to the forms of crime which had had no or few occurrences in the former ‘socialist’ countries before. These are the economic crimes, drug-related crimes, organized crime and the connecting transnational crime, which can be regarded as the consequences of the transition to the market economy, of the privatization or the market economy itself. With the exception of certain types of drug crimes, it is common in the new forms of crime mentioned above that they characteristically connect to the ‘original accumulation of capital’ going on in the countries concerned in the course of which a group of people are trying to found their capital through crimes. This statement, however, is rather difficult to support with data of criminal statistics because, as it is widely known, latency is extremely high in the case of economic crimes and the institutions of criminal law in the fight against organized crime are just now being established in the countries of the transition. For example, the ratio of economic crime in the total amount of crime in Hungary was 1.5% in 1990 and 1.3% in 1997. Other indicators and facts, however, show a stronger relationship between crime and economy. The number of fraudulent documents in Hungary was fewer than 7 thousand in 1990, which rose to approximately 38 thousand in 1997. The fact that the victims of homicides with the characteristics of reckoning are very often entrepreneurs with connections in the underworld may also reflect the suspected relation mentioned above. The vigorous presence of transnational crime, that is crime which overlaps the borders of the countries of transition, is also due to the increased possibilities of the accumulation of capital. The opening of the borders, migration, taking part in the international economy-business-monetary cooperations are the factors which have helped the former socialist countries to appear on the international black markets. Hans-Jörg Albrecht writes the following in his study about the subject: Following the social change, the Eastern European countries rapidly joined the already existing black markets. The joining was completed in both sides of the black markets, both on the side of demand and supply.19 19  H.-J. Albrecht, ‘A nemzetközi bûnözés, mint a rendszerváltás következménye’ (Transnational Crime as a Consequence of Transition), in F. Irk (ed.), Társadalmi átalakulás és bûnözés (Social



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Hence, we can say that the structure of crime in the countries concerned has changed in a way that, besides the dominance of traditional crimes such as property crime, which is still a determining factor owing to its ratio, the crimes which characterize the post-industrial societies, e.g. the different kinds of drug abuse, transnational crimes are also present, as well as the economic crimes connected to the transition to market economy. Crime has taken a negative course of change during the transition both from the qualitative and quantitative point of view in the former ‘socialist’ countries. 3.2. Victim Surveys Besides data on reported crime, victim surveys and studies concerning fear of crime also reveal the worsening of crime and public security. Analyzing the data of the International Crime Surveys of 1989 and 1992 on Czechoslovakia, Poland, Georgia, Ljubljana the capital city of Slovenia and Moscow Helmut Kury and Joachim Obergfell-Fuchs argue that ‘the data of studies … indicate that the crime load in the Eastern countries has approached or even seems to have surpassed the crime load in the Western countries. Proceeding from this crime load in the Eastern countries can be assumed to have increased clearly within the last few years, for in the socialist era it was surely considerably lower than in the western industrial nations’.20 The report made by Pat Mayhew and Jan van Dijk which contains the most important research data of the International Crime Victims Survey of 1996 also supports the above statement.21 The ratio of victimization in the case of ‘all more serious property crimes’ was 15.9% in the Czech Republic and 11.5% in Poland in 1995, contrary to the 4.6% in Austria, 11.2% in the Netherlands and 12.7% in France.22 In the case of two further groups of crime, ‘contact crimes’ and ‘petty crimes’ the countries of the transition belong to the group of countries with high rates rather than to the group with low rates of victimization when compared to the data of the 11 industrialized countries in the survey. The characteristics of crime discussed above have also contributed to the increase of fear of crime in the countries concerned. László Korinek’s survey of subjective security in Hungary has revealed that while in 1982, 40% of the

Transformation and Crime), Hungarian-German Criminological Symposium: 20–25 August 1995 (Budapest 1997) pp. 215–240 (219). 20  H. Kury, J. Obergfell-Fuchs, ‘Crime Development and Fear of Crime in Post-communist Societies’, in B. Szamota-Saeki, D. Wójcik (eds.), Impact of Political, Economic and Social Change on Crime and its Image in Society (Warsaw 1996) pp. 117–146 (132). 21  P. Mayhew, J.J.M. van Dijk, Criminal Victimization in Eleven Industrialised Countries (The Netherlands 1997). 22  See P. Mayhew, J.J.M. van Dijk, op. cit., Appendix.

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people interviewed said that they were not afraid at home, at night, in the area they lived or anywhere else, the ratio in 1992 was no more 25%.23 Surveys conducted on the subject in Poland before and after 1989, also indicate the increase of fear of crime. In connection with this Krzysztof Krajewski writes that before 1989, ‘public opinion polls conducted in 1985, 1988 and 1989 … showed that the fear of being victimized was at that time very low: about 38 per cent of the respondents said that their fear of being victimized was very low. At the same time about 30% per cent were of the opinion that life in Poland is much more secure than in other countries’.24 The International Crime Survey of 1992, however, revealed that ‘Poland (and former Czechoslovakia) had the highest percentage of respondents who felt a bit or very unsafe when walking in one’s own area after dark: 45.4 per cent and 43.6 per cent respectively. ‘It is worth mentioning’ – he adds citing the data of the 1992 survey – ‘that in the USA the percentage of respondents with similar fears was 41 per cent, and the average for Europe was 30.3 per cent’.25 So far the paper has dealt with the common characteristics of crime after 1989, in the five Central-Eastern European countries. Let us briefly summarize the most important differences. As Table 2 reveals Slovenia is in much more favourable position concerning the dynamics and ratio of crime than the other countries. The earlier drastic increase in the number of crimes in Poland did not continue after 1990 because the level of crime settled. The continuity of the stabilizing can, however, be questioned as in Hungary the number of registered crimes increased by 10% in 1997, as compared to 1996. After a decrease in 1993–1994 the vigorous increase continued and now it is Hungary that can doubtlessly boast of having the highest ratio of crime among the countries concerned. Concerning the field of the structure of crime Poland shows significant differences. While in the Czech Republic, Hungary and Slovakia the ratio of the property crimes has bordered 70% since the beginning of the nineties, in Poland it has been less than 60% since 1994.26 The difference is basically due to the 25% decrease in the number of reported burglaries compared to the data of 1990, and to the 85% increase in the number of registered robberies and the increase in the number of other violent crimes during the same period. 23  L. Korinek, ‘Békés egymás mellett félés, avagy félelem a bûnözéstõl Közép-Kelet-Európában’ (‘Peaceful Coexistence in Fear’ or Fear of Crime in Central and Eastern Europe), in F. Irk (ed.), Társadalmi átalakulás és bûnözés (Social Transformation and Crime), Hungarian-German Criminological Symposium: 20–25 August 1995 (Budapest 1997) pp. 145–150. 24  K. Krajewski, ‘Fear of Crime and Criminal Law Reform in Post-communist Societies’, in B. Szamota-Sacki, D. Wójcik, op. cit. (Warsaw 1996) pp. 147–155 (148). 25  K. Krajewski, loc. cit., p. 149. 26  A. Kossowska, ‘Crime in Poland in the Period of Rapid Social Change’, in B. Szamota-Saeki, D. Wójcik, op. cit., p. 29.



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To summarize the possible causes of the common features and the causes of the differences as well the theories of criminology with the help of which the crime of the period of transition can best be explained and understood, it is worth analyzing the political, economic, social and cultural content of the transformation itself. Thus we will be able to outline the characteristic features which explain the change in the character described above.

4. The Content and Direction of the Transformation; Transformation and Crime The professional literature of studies about the democratic transformation of the totalitarian regimes distinguishes four ‘families’ of the transformations in the 20th century. The first three include the transformations following the wars of 1918 and 1945, and the transformations which took place in Southern Europe and Latin America from the mid-seventies. The fourth ‘family’ is the postcommunist transformation after 1989. According to Clauss Offe there are two significant differences between the transformations belonging to the first three or the fourth group. He argues in his paper titled ‘The Cultural Aspects of Consolidation: A Note on the Peculiarities of Postcommunist Transformations’27 that the first difference reflects the fact the political and economic situation of state socialism are fundamentally different from essentially capitalist ones, and also the fact that an authoritarian-corporatist organization of economic life could be found in our three first ‘families’ before their transformation began. Generally speaking, the ancient régimes of formerly socialist countries had to undergo, in their transformation processes, a political reconstruction programme far more comprehensive than what was required in earlier regime changes … A second difference arises from the fact that, in most of the cases of democratization within the first families, what really took place was re-democratization. The countries in question could design their future political organization, having at their fingertips vestiges of earlier republican and liberal democratic traditions in their own national history and in the collective memory of their citizens. Models for the future, taken from the past, are not absolutely lacking in the postcommunist countries (as in the cases of the Czech Republic, Poland and perhaps also Hungary) but even in this minority of ‘divergent’ cases, such models are weaker and have been banished for a longer time than in the transformation cases of Southern and Western Europe and even of Latin America … Moreover, the transition from state socialism to capitalism and liberal democracy has neither been tried nor accomplished before.28

27  28 

1997. C. Offe, loc. cit., p. 64.

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The above also shows that the postcommunist transformation in the countries in question is an outstanding revolutionary process with no earlier references in history. The transformation has affected the institutions of the political and legal system, the economy, the international relations, the cultural and intellectual life and naturally the weekdays of the citizen. The transformation also means the establishment of the institutions of the parliamentary democracy and the market economy and the corresponding redistribution of wealth, new international relations based on unquestionable national independence, guaranteed civil rights in accordance with the ‘rule of law’, and the establishment of the civil society. To briefly sum up the above: change is transformation and transformation is a transition from the monolithic model to the pluralist model of society. As to its sociological content, transformation is a kind of modernization following the Western European pattern or, as Albrecht put it: transformation is deferred modernization.29 This does not, of course, mean that these countries could have been labelled as pre-industrial societies before the collapse of socialism. In some of the five countries of my concern, the modernization following the Western European pattern had started as early as the pre-World War I years or, in the other countries, not later than during the period between World War I and World War II. It is true, however, that this kind of modernization was interrupted by the establishment of the socialist system by the end of the 1940s. At the same time, according to Szilveszter Póczik the Hungarian criminologist, ‘the virtual systems of socialism modernized the society to a certain extent and tried to make up for the lag in development which was due to their peripheral importance in history’.30 4.1. Relevant Features of the Changes What are the relevant features of the above changes from the point of view of criminology? First of all the rate, intensity and radical character of the changes should be pointed out and that they took place in a relatively homogeneous, not very divergent, from several respects closed societies which had had forty years of ‘socialist’ traditions at the end of the 1980s, and beginning of 1990s when the transformation started. As a result of the transformation these countries have become open, subtle and plural in their scale of values and norms and their chances for life have increased. A further characteristic of the changes is the H.-J. Albrecht, Sanctions and their Implementations, paper presented at the Twenty-First Criminological Research Conference of the Council of Europe (Strasbourg, 19–22 November 1996) p. 1. 30  Sz. Póczik, ‘Rendszcrváltás és kriminalitás: Külföldick és cigányok a bünpiacon’ (Changing of the Regime and Criminality: Foreigners and Gypsies in the Crime Market), 6 Valóság (1996) p. 74. 29 



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fact that the transformation started in societies living in crisis and not in general welfare. Last but not least, it is a further characteristic of the changes that the past and its scale of values, symbols and institutions have all been nullified. The characteristics mentioned lead to phenomena such as relative deprivation, the increase of social inequality and, as a consequence, increasing social tensions, conflicts and social disharmony, which are defined by the professional literature as the negative effects of the transformation.31 The above effects and corresponding problems such as unemployment have made it difficult or even impossible for a large number of citizens to adapt to the new system, or new conditions. This stratum of society are the losers of the transformation producing the majority of offenders. This statement will be supported by some of the figures regarding the social background of the offenders in Hungary. The ratio according to the level of education of the offenders was, in Hungary, in 1988: 57% had finished the compulsory eight-year primary school, 26% had attended and finished a three-year vocational school, 12% had taken the final exams at a secondary school and 4% had a college or university degree. The ratio of the offenders who had jobs or employment with regular income, or the ratio of the offenders taking part in some kind of education during the time of the offence was as follows: in 1988 roughly about 12% of the offenders had no jobs or did not take part in any kind of education. In 1992, however, 38% of the offenders had no jobs or lived on the dole. (The number of offenders had increased by about 60% by 1992, compared to the data of 1988.) In 1997, 44% of the offenders had no jobs or lived on the dole although the ratio of the offenders compared to the data of 1992 decreased by 1.5%.

5. Conclusions We can say that the, perhaps, most important common factor which explains the causes of the dramatic increase in crime during the transition and its stabilization at a level higher than in the socialist period, is that in the countries concerned, as the by-effect of the transformation, the society has polarized more explicitly than ever before. The differences in the income of the citizens have become very significant, inequality between the Strata of society has also increased. We have good reasons to assume that both the trend of crime and the increased ratio of property crimes originate in the increasing social polarization and processes in the background such as impoverishment, unemployment and the increase of the ratio of those belonging to the highest level of income. Furthermore the 31  See for example H.-G. Heiland, L. Shelley, Civilization, Modernization and the Development of Crime and Control, paper prepared for the 50th Annual Meeting the American Society of Criminology (San Francisco, 20–23 November 1991).

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economic transformation, the anomalies of the transition to market economy and the weakening of the power of the institutions exercising control at the beginning of the transformation are the factors that contribute to the increase in crime in every country in question. What factors explain the differences referred to above? Considering the ratio and dynamics of crime, the situation in Slovenia is much better than in any other of the five countries. Experts in Slovenia think that this is due to the size of the country, the small number of big cities and, as a consequence, to the strong informal control and the importance of the role of the family.32 Besides the above, the experts also emphasize that the dynamic increase in crime did not take place in Slovenia because the citizens did not experience the changes as dramatically as in the other four countries, since the Slovenians had (and have) been working abroad, and become familiar with capitalism, in the neighbouring Western European countries since the mid-1960s, the time when Slovenia’s borders were opened.33 According to Anna Kossowska the halt of the increase of the ratio of crime in Poland after 1990 is also due to the fact that the people did not experience the changes to be abrupt or dramatic. She writes the following: The years from 1980 (when the solidarity movement was born) to 1989 (when the system change took place) may be viewed as a ‘preparatory period’ that preceded fundamental systematic transformation and was independent of what was going on in official political life.34

The level of reported crime in Hungary, which has been approximating the level of the ratio in Western European countries, also needs explaining. The first factor, which is worth mentioning, is that Hungary had the highest ratio of crime from among the countries in question at the time of the collapse of socialism, excluding Slovenia because it was a member state of Yugoslavia then. According to Hungarian criminologists the relatively high level of crime was due to the social inequalities present as early as the 1980s in Hungarian ‘socialism’, the rising level of deprivation and the state of anomy of the society.35 The dynamic increase in crime after the transition also corresponds to the above factors, especially to the massive differentiation in property. More and more people are affected by relative deprivation while the number of those who 32  See Z. Kanduc, ‘Crime in Slovenia’, 3 European Journal on Criminal Policy and Research (3–4) (1995) pp. 64–72 (69f.). 33  A. Selih, F. Brinc, ‘Crime in the Period of Rapid Social Change: The Case of Slovenia’, in B. Szamota-Saeki, D. Wójcik, op. cit., p. 114. 34  A. Kossowska, loc. cit., p. 114. 35  See K. Gönczöl, ‘A hátrányos helyzet és a bûnözés összefüggései’ (Relationship between Underprivileged Social Status and Crime), 8 Valóság (1982); A. Szabó, ‘A társadalmi beilleszkedési zavarok és a bûnmegelõzés’ (Social Maladjustments and Crime Prevention), Kriminológiai Közlemények, no. 2 (1984).



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own large fortunes is also rising. By 1995, the ratio of those who belonged to the first four classes of an eleven-grade income-scale had increased by 6.2%, while the ratio of those who belonged to the top two classes had also increased by 1.5% compared to 1992.36 The number of those whose income was less than the subsistence level officially published by the government had become as high as two, and two and a half million by 1994, and the ratio of unemployment had exceeded 10%. By the end of the 1980s, a large group of people had appeared on the periphery of society who were unable to adapt to the new economic system, meet the requirements of the labour market or improve their conditions on their own. Researches in Hungary have revealed that the different kinds of deviation accumulate and concentrate among them, furthermore the conditions of the increasing reproduction have also developed or as Katalin Gönczöl put it: ‘Living conditions seem to reproduce crime in this case’.37 The statement is supported by the data about the social background of the offenders in Hungary discussed above. The fact that more and more people are affected by the relative deprivation is also supported by the data of the surveys about the fear of crime. Revealing the data of his survey referred to above, László Korinek argues that fear has mostly increased in the case of property crimes. We can conclude that this fear, which is specifically characteristic of the Hungarian citizens, is embedded in the social reality of the Hungarian society. In an impoverished society the relative value of assets is appreciated higher than their real value.38

It is also true, however, that the possibilities for committing crimes have also increased owing to the growth in wealth of some people and the anomalies in the functioning of the police as an important institution of formal control. The above is supported by the data on the car pool and car thefts. Compared to the data of 1987, the car pool in Hungary had increased by 31% by 1994, and number of reported car thefts had multiplied by 25.39 The structure of crime, in contrast to the other countries concerned, has taken a different course in Poland over the past few years. The number of property crimes has decreased while the number of violent crimes has increased. According to experts in Poland the causes are to be found in the fact that robberies, very often armed robberies, have become more frequent and that the juveniles delinquencies have become more brutal.40 See G. Baló, I. Lipovecz (eds.), Tények könyve (Book of Facts and Figures) (Budapest 1997) p. 542. K. Gönczöl, ‘A bûnözés társadalmi reprodukciója Magyarországon a kilencvenes években’ (Social Reproduction of Crime in Hungary in the Nineties), in K. Gönczöl, L. Korinek, M. Lévai (eds.), Kriminológiai ismeretek – Bûnözés – Bûnözéskontroll (Criminology-Crime-Crime Control) (Budapest 1996) pp. 108–118 (116). 38  L. Korinek, loc. cit., pp. 147–148. 39  See I. Kertész, J. Stauber, loc. cit., p. 527. 40  A. Kossowska, loc. cit., p. 30; K. Krajewski, loc. cit., p. 150. 36 

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miklós lévay Accordingly, we can agree with Matti Joutsen’s statement which is as follows: the different Central and Eastern European countries have offered veritable laboratories for the testing of several theories on the link between change and crime, and on the link between change and image of crime.41

Although it is not the objective of this paper to test theories, however, some theories will be mentioned which would be worth considering testing in the framework of a criminological transformation research. The sphere of potential theories can logically be concluded from the character of the changes in the former ‘socialist’ countries and the corresponding social situation and the state of crime. The anomalies of social standards, social disorganization, the problems of adaptation which are the effects of the transformation justify the testing of the theory of anomy by Durkheim and Merton’s strain-theory.42 The empirical testing of Merton’s theory in the light of Joachim Savelsberg’s explanation that ‘… rising crime or innovation in Eastern Europe as an adaptive strategy for dealing with strain’,43 could help us in understanding why masses of people in the countries of the transition have to face the dwindling of legal possibilities to fulfil social objectives. Owing to its sociological content the transformation offers a perfect ground for the testing of criminological theories of modernization, especially the testing of the theories which put the emphasis on the mediatory factors between modernization and crime instead of indicating a simple cause-effect relationship between the two phenomenon. Eisner’s model of ‘supply and demand of self-control’ is a good example of the above type of theories. Its basic statement is that long-term changes in crime rates are the result of differing gaps between the normal level of self-control required in a given socio-economic structure and ability of social structures to produce the required levels of self-control.44

As the period passed, since the transition, is long enough, we also have the possibility of analysing another hypothesis by Eisner, which says ‘that the increase of crime rates do not simply reflect the economic deteriorations following the revolutions in 1989 but a more fundamental break between the motivational requirements characteristic for ‘post-industrial’ societies and the predominating patterns of cultural codes socialised’.45 In the societies of transformation both the ‘numbers of motivated offenders’ and the numbers of ‘suitable targets’ increase while ‘the absence of capable 41  M. Joutsen, ‘Change and Integration in Europe: Crime and Criminal Justice in Transition’, in B. Szamota-Saeki, D. Wójcik, op. cit., p. 9. 42  E. Durkheim, Rules of Sociological Method (New York 1966); R.K. Merton, ‘Social Structure and Anomie’, 3 American Sociological Review (1938) pp. 672–682. 43  J.J. Savelsberg, loc. cit., pp. 218–219. 44  M. Eisner, loc. cit., p. 34. 45  M. Eisner, loc. cit., p. 42.



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guardians’ is more and more apparent, which opens the ground for the testing of opportunity theories.46 It would be of primary importance to include the former ‘socialist’ countries that have not yet taken part in the Crime Victims Surveys, in the testing of van Dijk’s ‘crime-market’ model.47 It would especially be useful to learn more about the changing motivational factors rooting in the modernization and the state of the supply of the ‘crime-market’ than we know at present, because both the experts and the population in the countries of the region underestimate the significance of situational crime prevention. Since the 11th International Congression on Criminology numerous publications and conferences have been dedicated to the effect of transformation on crime in the former socialist countries. Yet, we can not turn our back on the problem of this unique form of change and its connection with crime, saying that nothing new can be said about it. Several questions have still not been answered and the permanence of some trends is uncertain. We can, however, be more certain of some phenomena than we were in 1993. Criminal data of the past years support Hans-Jürgen Kerner’s opinion in 1993, according to which ‘the level of crime in the societies that used to live under firm control remains significantly higher than it had ever been before in the period preceding the transition’.48 The present level and patterns of crime in the countries concerned justify Jean Pinatel’s view, from as early as 1970, that each type of crime corresponds to a certain type of society and the extent and patterns of crime are not identical according to the types of society.49

The characteristics of crime in the Eastern-Central European countries following the Western European type of development, as a rule, are becoming similar to the Western European patterns of crime. This does not, of course, mean that the criminologists in these countries justify all the phenomena of crime on the basis of this development and will stop seeking for the possible effective methods of prevention. Experiencing the nostalgia towards the ‘secure’ past, we must, however, emphasize that the low level of crime itself in a country is neither a value or merit. It only becomes valuable when it goes together with democracy, welfare, social justice and the respect of the human rights. 46  L.E. Cohen, M. Felson, ‘Social Changes and Crime Rate Trends: A Routine Activity Approach’, 44 American Sociological Review (1979) pp. 588–608. 47  J.M. van Dijk, ‘Opportunities for Crime: a Test of the Rational-Interactionist Model’, in Crime and Economy, Criminological Research, Vol. XXXII (1995) pp. 97–145; P. Mayhew, J.M. van Dijk, op. cit. 48  H.J. Kerner, loc. cit., p. 176. 50. 49  J. Pinatel, ‘La recherche scientifique en criminologie comme base de politique criminelle’, 28 Revue internationale de politique criminelle (1970) p. 15.

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That is why, analysing the crime of the countries of the transformation, we should not only emphasize that the rising crime rate is the price for freedom, but the opposite as well, namely that in the era preceding the transition, the lack of freedom and limited choices, opportunities were the price which our societies paid for the low level of crime. At the same time, more and more comparative crime, crime prevention and criminal justice studies should be made by the community of criminologists to help the new democracies in their efforts to fight increasing crime and avoid that neither crime nor extremely tough social control obstruct their development.

Experiences of the International Crime Victim Survey in Slovenia, Croatia, Macedonia and Yugoslavia Biljana Simeunović-Patić MA Junior researcher, Institute for Criminological and Sociological Research, Belgrade, Serbia

1. Introduction At the very beginning of the last decade, the Former Yugoslavia (SFRJ) was disintegrated after almost fifty years of existence. The process of disintegration was followed by several wars on the territories of three ex-Yugoslav republics that produced many severe consequences: thousands of people were killed, hundreds of thousands were expulsed from their homes while much of the civil infrastructure was seriously damaged. The economic consequences of war were also hard and they weakened the new Balkan countries just as they were starting up the process of political and economic transition. It can be stated without exaggeration, that during the last decade all of the circumstances commonly considered as strong generators of various forms of victimization of people, took effect simultaneously in the territories of ex-Yugoslav republics. Considering all these facts, it should be assumed that rates and patterns of the conventional criminal victimization in the new Balkan countries have also been changed. Furthermore, even though these countries had not been affected by the war and its political, social and economic consequences to the same extent, and even though their political and economic reforms had not been carried out with the equal level of success, a comparative analysis of criminal victimization seemed to be of great value. Unfortunately, the crime victim surveys in the Former Yugoslavia, as well as in the five new countries, which appeared after its disintegration were rare. In particular, for most of them, the International Crime Victim Survey was their first experience with such surveys and their first opportunity to provide some useful and reliable information on the ‘dark figure’, fear of crime, citizens’ attitudes toward formal crime control, corruption of public administration and related issues. This paper explores the criminal victimization in Slovenia, Croatia, Macedonia and Yugoslavia during the first half of the 1990s. It is mainly based on the

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results of the Third International Crime Victim Survey,1 carried out in 1996–97. Namely, the third round of the ICVS was the first that included all countries of the former Yugoslavia, with the exception of Bosnia and Herzegovina. This offered an opportunity, not only for insights into each of these countries’ results on victimization rates, patterns and citizens’ experiences with crime and crime control, but also for a comparative analyses of the main findings.

2. Data Sources, Data Considerations and Method for This Study If not specified, all presented data relating to organization, implementation of the ICVS in Slovenia, Croatia, Macedonia and Yugoslavia, as well as the results, came from the National Reports prepared by the national coordinators for each country.2 Furthermore, that the ICVS enabled analysis on crime victimization rates and related problems on the national level, the standardized methodology also empowered a simple comparative analysis based on the empirical frequencies obtained in each country and presented in standardized table-forms within the National reports. This study will compare the empirical frequencies of the rates of victimization and all related phenomena that have been explored through the ICVS. Further, there will be a comparison made between the rates of victimization and related phenomena found in ex-Yugoslav republics, with those identified in other countries in transition and industrialized countries. It ought to be pointed out that the ICVS was carried out only on a city level, in all of ex-Yugoslav republics, with the exception of Slovenia. Therefore, all presented data and comparisons between ex-Yugoslav republics refer, to the capitols of ex-Yugoslav republics: Ljubljana (Slovenia), Zagreb (Croatia), Skopje (Macedonia) and Belgrade (Yugoslavia). For the purposes of this study (in order to enable comparisons) dimensions and patterns of victimization and related

1  The ICVS was launched in 1989, under the sponsorship of the Dutch Ministry of Justice covering 15 industrialized countries, one developing country (Indonesia) and one country in transition (Poland). The second round of the ICVS (1992–94) was coordinated by the Ministry of Justice of Netherlands, the UK Home Office Research and Planning Unit and UN Interregional Crime and Justice Research Institute (UNICRI), covering 12 industrialized countries, 13 developing countries and 7 countries in transition. The third round (1996–97) of the ICVS included 12 industrialized, 12 developing and 15 countries in transition. 2  The basic sources were: (1) Z. Pavlović, ‘The International Crime Victim Survey in Ljubljana (Slovenia)’, in O. Hatalak, A. Alvazzi del Frate, U. Zvekic, eds., The ICVS in Countries in Transition. National Reports, UNICRI, Publication No. 62 (Rome 1998) pp. 493–505; (2) Z. Separović, K. Turković, ‘The International Crime Victim Survey in Zagreb (Croatia)’, in O. Hatalak, et al., eds., op. cit., pp. 123–175; (3) V. Caceva, ‘The International Crime Victim Survey in Skopje (Macedonia)’, in O. Hatalak, et al., eds., op. cit., pp. 375–392; (4) V. Nikolić-Ristanović, ‘The International Crime Victim Survey in Belgrade (Federal Republic of Yugoslavia)’, in O. Hatalak, et al., eds., op. cit., pp. 547–561.



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phenomena in Slovenia will be represented by data provided by the city-sample (Ljubljana-sample).

3. Some Basic Information on the International Crime Victim Survey in Slovenia, Croatia, Macedonia and Yugoslavia in 1996–97 The organization and implementation of the survey in Croatia, Slovenia, Macedonia and Yugoslavia, included the engagement of the Institute for Criminal Law, Criminology and Victimology of the Zagreb Law School, University of Zagreb who conducted the survey in Croatia in 1997; CATI Center, Ljubljana, who conducted the survey in Slovenia in 1997; Institute for Sociological, Political and Juridical Research in Skopje, who carried out the survey in Macedonia in 1996 and the Institute for Criminological and Sociological Research in Belgrade, who conducted the survey in Yugoslavia in 1996. All research teams worked under the leadership of the International Working Group. The national coordinators were appointed by UNICRI. The ICVS carried out in 1996–97 in Croatia, Slovenia, Macedonia and Yugoslavia utilized the standard ICVS questionnaire that covered eleven types of victimization that could have affected the respondent personally or his/her household. A first group of crimes dealt with the household crimes: theft of car, theft from car, car vandalism, theft of bicycle, theft of motorcycle, burglaries and attempted burglaries. A second group referred to personal crimes: robbery, theft of personal property and assault/threat. Women were also asked about sexual incidents. A third group of crimes included corruption in public administration and consumer fraud. Additionally, the questionnaire included sections on reporting to the police and reasons for not reporting, respondents’ opinion of police work, fear of crime, crime prevention measures and attitudes to punishment. The questionnaire was translated into local languages by national coordinators who took a particular care to ensure it was precise and easy to understand. Following the random sample selection procedure, the samples of households were established considering the differences in the cities’ areas according to their size and residential status. The sample sizes were different in the four countries. In Slovenia, a relatively large sample was used, accounting for 2,053 households. A sample of 1,033 households were interviewed in the city of Ljubljana, while the remaining sample of 1,020 households was carried out in the rest of Slovenia.3 In Croatia, Macedonia and Yugoslavia it was decided to execute the survey on

3  Slovenia is the only country of ex-Yugoslav Republics that took part in the second ICVS round when 1,000 households were interviewed.

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a city level.4 The households of the capitols, Zagreb, Skopje and Belgrade were interviewed giving the net samples of 994, 700 and 1,094 households, respectively. Within each household, a respondent (aged sixteen or over) was randomly selected to be interviewed using the next-birthday method to ensure proportionate representation of all ages of both male and female residents. Face-to-face interviewing was used in all countries except Slovenia, where the CATI was used as a data collection technique. Especially trained and carefully selected interviewers carried out the fieldwork in Croatia, Macedonia and Yugoslavia. An average interview lasted between 15 and 20 minutes.

4. Main Findings 4.1. Victimization Rates in Slovenia, Croatia, Macedonia and Yugoslavia 4.1.1. Overall Victimization Rates and Patterns during the First Half of the Last Decade The results of the ICVS carried out in 1996–97, show that overall victimization rates in the preceding five-year period in ex-Yugoslav republics significantly differed (Table 1). During the first half of the past decade, three-quarters of respondents in Yugoslavia, two-thirds in Slovenia (Ljubljana) and about half of the respondents in Macedonia and Croatia were victimized at least once. In the five-year period preceding the survey, the citizens of Slovenia and Yugoslavia were exposed to a twice as high risk to more than one type of victimization compared to those in Croatia and Macedonia. On the country level in Slovenia there was a lower overall victimization rate compared to the city of Ljubljana itself: less than a half of the respondents in the rest of country had been victimized during the five-year period. On the other hand, the overall five-year victimization rate found in Ljubljana in 1997, was just equal to that identified in 1992, within the Second round of the ICVS (64.3). The five-year patterns show that the most frequent types of victimization in all of the capitols of ex-Yugoslav republics were thefts from car and car vandalism. Generally, the structures of the conventional crime in ex-Yugoslav republics were predominantly determined by property crime, which participated in total crime, with 75 per cent in Slovenia, Croatia and Yugoslavia, and even with 88 per cent in Macedonia. During the five-year period, the violent victimization participated in total victimization with 25 per cent in Slovenia, Croatia and Yugoslavia, while that participation in Macedonia accounted for only 12.5 per cent. 4  A lack of systematic information needed to draw a national sample in these three countries, as well as restricted financial means, determined the decision relative to the level of the survey.



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Table 1. Overall victimization rates 5 (five-year period) Slovenia (Ljubljana)

Croatia (Zagreb)

Macedonia (Skopje)

Yugoslavia (Belgrade)

65.6

46.4

52.6

72.1

Similarly, it was found in most of the countries in transition, that thefts of car and thefts from car participated in the victimization structure in a range from 20 per cent in Slovenia and Croatia, to 25 per cent in Macedonia and Yugoslavia. Burglaries and attempted burglaries participated in a range from around 10 per cent in Croatia to 15 per cent in Slovenia. One out of five victims in Yugoslavia and Macedonia experienced a personal theft, while in Croatia and particularly in Slovenia that participation was lower. Women in Slovenia and Yugoslavia replied more often, than their counterparts in Croatia and Macedonia, that they had been sexually victimized during the five year-period. Besides answering the questions regarding the victimization experience during the five-year period, the respondents also gave much more information on victimization experienced in the calendar year that preceded the survey (in Slovenia and Croatia 1996; in Macedonia and Yugoslavia 1995). It should be noticed that in general, the victimization patterns identified in the five-year period also characterized the year preceding the survey. 4.1.2. Country (City) Profiles of Criminal Victimization In the year preceding the survey, the most frequent types of victimization in Slovenia were car vandalism (with a victimization rate of 13.1 per cent), theft from car (9.2), assault/threat (6.7), burglary (4.2) and attempted burglary (3.2). The rates of these types of victimization exceeded those found in other ex-Yugoslav republics. The burglary rate in Slovenia was higher than those found in most of the countries in transition (Table 3). The criminal victimization in Croatia was predominantly determined by assaults/threats (with a victimization rate of 1.5 per cent), vandalism (2.1) and thefts of car (0.9). Hence, all of the victimization rates in this country were significantly lower than those identified in Slovenia, Macedonia and Yugoslavia, as well as those found in other countries in transition and many of the Western European countries. With the exception of assaults/threats and vandalism, none of the prevalence victimization rates of the so-called conventional crime types exceeded one per cent.

5 

Corruption and consumer fraud are excluded.

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Table 2. Prevalence 6 of the victimization rates (five-year period) Slovenia (Ljubljana)

Croatia (Zagreb)

Macedonia (Skopje)

Yugoslavia (Belgrade)

Theft from car

23.5

14.5

22.6

30.4

Theft of car

1.5

3.7

2.4

5.6

Vandalism

27.5

20.1

19.7

19.8

Theft of bicycle

13.7

6.0

7.0

4.6

Theft of motorcycle

1.0

0.4

0.7

0.2

Burglary

12.1

4.6

8.0

9.0

Attempted burglary

8.3

4.1

4.9

7.0

Robbery

4.4

2.2

3.0

4.3

Assault/threat

15.8

9.7

7.1

16.0

Personal theft

16.4

14.0

17.9

26.1

Sexual offences

12.0

10.0

1.3

13.0

Type of victimisation

The pattern of victimization of citizens in Macedonia was mainly determined by thefts from car (with victimization rate of 6.7 per cent) and thefts from the person (6.4). Almost all victimization rates in Macedonia were lower than those in Slovenia, Yugoslavia and most of the countries in transition and Western European countries. Yugoslavia exhibited very high victimization rates for the thefts from car (9.2 per cent), personal thefts (8.0) and the thefts of car (1.4). The rates of these types of victimization notably overstepped those found in other ex-Yugoslav republics. The rate of theft of car in Yugoslavia was between three and five times as high as those found in Macedonia and Slovenia respectively.7 There was an evident difference in rates and patterns of victimization between the republics of former Yugoslavia and other countries in transition. Namely, the contact crime reached a considerable participation in the victimization structures in all ex-Yugoslav republics. The rates of assault/threat and sexual offences in Slovenia and Yugoslavia, strongly exceeded those found in the vast majority of countries in transition. On the contrary, the rates of robbery in these 6  Prevalence – the percentage of respondents who have been victims of specific form of crime once or more. 7  Yugoslavia exhibited the highest rate of car-theft among all the ex-Yugoslav republics during the whole first half of the 1990s.

9.2

4.2

3.2

2.0

6.7

4.6

Theft from car

Burglary

Attempted burglary

Robbery

Assault / threat

Sexual offences (women)

0.4

1.5

0.2

0.2

0.2

0.6

0.9

Croatia (Zagreb)

0.1

1.8

1.1

1.6

2.0

6.7

0.4

Macedonia (Skopje)

2.3

5.6

1.0

2.7

2.9

9.2

1.4

Yugoslavia (Belgrade)

1.8

2.2

2.3

3.5

3.8

7.8

1.2

Countries in transition

1.5

2.1

1.8

1.8

1.7

8.4

1.8

Western Europe

Source: A. Alvazzi del Frate, ‘The International Crime Victim Survey: A Global Overview with a Focus on the Balkan Region’, in U. Zvekić, B. Stankov, eds., Problems of Victimization in the Countries of Balkan Region, UNICRI (Sofia 1998) pp. 149–150.

0.3

Slovenia (Ljubljana)

Theft of car

Type of victimization

Aggregate rates for

Table 3. Victimization rates of selected crimes: ex-Yugoslav republics, countries in transition and Western Europe (one-year)

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four countries were lower than the average rates for countries in transition and Western European countries. 4.1.3. Relation Between the Gender and Victimization Risks The results confirmed the rule about the unequal sharing of victimization risks among genders. In all of the ex-Yugoslav republics males were twice as likely to be victims of robbery and assault/threat as females. On the other hand, females suffered from personal thefts significantly more often than males. While assessing the Belgrade-survey it was found that there was a significant relationship between gender and risk of becoming a victim of robbery, assault and personal theft. While males were significantly of higher risk to suffer from robbery (χ2 = 11.7; df = 1; p = 0.0009) and assault (χ2 = 25.96; df = 1; p = 0.0000), females were exposed to a considerably higher risk of personal theft (χ2 = 47.64; df = 1; p = 0.000).8 The majority of the victims of sexual incidents experienced non-violent forms which could be defined as sexually offensive behaviour. On the average, one in ten victims of sexual offences considered they had suffered from rape or attempted rape. Trends in crime could be examined only in the case of Slovenia as other exYugoslav republics had not been involved in the previous rounds of the ICVS. Compared to 1992, Ljubljana experienced an increase in rates of all types of conventional crime except car theft, vandalism and theft of motorcycle. Violent victimization increased enormously: the prevalence rate of robbery increased ten times (from 0.2 to 2.0), the rate of assault/threat tripled (from 1.8 to 6.7), while sexual offences rate increased 50 per cent (from 3.2 to 4.6). However, it should be noted, that during the first half of the 1990s, violent crimes had an increasing trend in all counties in transition except Poland.9 4.2. Corruption in Public Administration and Consumer Fraud Through the ICVS, there was data on corruption exclusively regarding the public officials. Yet, the corruption of public administration is the most prevalent form of corruption and one of the commonest forms of citizens’ victimization in the majority of countries in transition. The results show that the corruption in public administration was remarkably higher in countries in transition and developing countries, than in industrialized ones (Table 4).

8  B. Simeunović-Patić, S. Jovanović, ‘Viktimizacija i strah od kriminala u Beogradu’, 1 Jugoslovenska revija za kriminologiju i krivično pravo (1998) pp. 123–124. 9  U. Zvekić, Žrtve kriminala u zemljama u tranziciji (Beograd 2001) p. 47.



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Table 4. Prevalence of ‘routine’ corruption in selected regions and ex-Yugoslav republics (one-year) 10 Industrialised countries

1.0

Developing countries

17.6

Countries in transition

12.8

Slovenia (Ljubljana)

1.5

Croatia (Zagreb)

16.0

Macedonia (Skopje)

7.4

Yugoslavia (Belgrade)

17.3

Table 5. Prevalence of consumer fraud (one-year) 11 Western Europe

12.7

Countries in transition

39.7

Slovenia (Ljubljana)

17.4

Croatia (Zagreb)

34.3

Macedonia (Skopje)

30.0

Yugoslavia (Belgrade)

49.3

The ex-Yugoslav republics experienced different rates in the bribery of public officials. While Yugoslavia and Croatia were placed very high on the list of the 20 countries in transition ranked respecting the ‘routine’ corruption rates, Macedonia was situated in the middle of it.12 Slovenia exhibited the lowest rate of bribery of public officials in the whole group of countries in transition. The prevalence rate of corruption of public officials in this country was nearly equal to the middle-rate for the industrialised countries. The most frequent form of ‘routine’ corruption in Slovenia and Macedonia was the bribing of customs officials while the citizens of Croatia and Yugoslavia were frequently exposed to corruption of police officials. The levels of corruption of the police in the latter two countries were the highest in the whole group of countries in transition, excepting Bulgaria and Russia. 10  11  12 

Source: U. Zvekić, op. cit., p. 50. Source for Western Europe and countries in transition: U. Zvekić, op. cit., p. 57. U. Zvekić, op. cit., p. 51.

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Consumer fraud13 was the most usual form of victimization of citizens in countries in transition – they were three times as likely to be victimized as those in Western Europe (Table 5). Yugoslavia has been much more affected by consumer fraud than other ex-Yugoslav republics, followed by Croatia and Macedonia, while Slovenia had the lowest rate of consumer fraud with observed declining tendencies (the prevalence rate in 1992 was 24.3). As in other countries in transition, the fraud most frequently occurred in stores. 4.3. Assessment of Crime Seriousness and Reporting Crime to the Police The victims in ex-Yugoslav republics differed in assessing the seriousness of crimes they had suffered from. In Croatia, the majority of those who suffered from car thefts, thefts of motorcycle and personal thefts considered the experienced victimization as ‘very serious’ or ‘somewhat serious’. In Slovenia, the victims of car thefts and burglaries appeared to have been most often seriously affected by experienced victimization. The victims of car thefts, burglaries and robberies in Yugoslavia and Macedonia assessed their victimization as ‘very’ or ‘somewhat serious’ more frequently than other victims. It can be concluded that most of the victims of propery-related crimes in ex-Yugoslav republics were intensely distressed by victimization. This is the consequence of poor economic conditions under which any financial loss will hurt notably. This assumption can be confirmed by a tendency observed in Slovenia: in 1997, Slovenians tended to consider property crimes as less serious than in 1992. This change was explained by a Slovenian National coordinator as an outcome of the improvement of the financial status of the nation.14 On the other hand, the percentage of victims of sexual offences who considered that they had suffered from serious crimes, increased remarkably. This might be explained as an effect of the improvement of a general status of women in the society that involved the redefining of sexual offensive behaviour which was more and more frequently recognized by victims as a serious attack on their sexual freedom. In all of the ex-Yugoslav republics the thefts of car were the most frequently reported to the police (on the average, nine out of ten car thefts were reported). Burglary was a relatively high reported crime in Yugoslavia (with a reporting rate of 71.4), somewhat lower in Croatia (61.1) and Slovenia (58.4), and rather low in Macedonia (48.6). Reporting of other crimes was more infrequent – in

13  Consumer fraud regards cheating in the quantity and quality of goods attained or services received. 14  Z. Pavlović, loc. cit., p. 497.



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each of these countries the reporting rates for all crime types (excluding thefts from car in Slovenia and Croatia), have not exceeded 50 per cent. The citizens of ex-Yugoslav republics rarely reported attempts of burglary, assaults/threats, personal thefts and sexual offences (Table 6). Still, the identified reporting rates were similar to those perceived in other countries in the Balkan region and other countries in transition (Table 7). Generally, the vast majority of contact crimes as well as corruption remained in the zone of ‘black figure’ of crime. There were various reasons for not reporting crimes to the police. Hence, the most of them were directly or indirectly linked with confidence in the police performance. The level of confidence in the police varied over countries: while in Slovenia and Yugoslavia it was somewhat higher than in most of the countries in transition, citizens of Croatia expressed a rather low level of confidence – nearly the quarter of victims of burglary had the opinion that the police ‘will not do anything’ after receiving the record. The lack of confidence in the police performance was the most frequent reason for not reporting robberies and assaults/threats in Yugoslavia and especially in Croatia (Table 8). The many victims of robbery and assault stated that they had not reported the crime accident because they were sure that the police would not do anything about it. It should also be pointed out, that one in five victims of assault/threat in Croatia did not report the crime for fear of reprisal. This rate much exceeded those identified in other ex-Yugoslav republics and the majority of countries in transition. 4.4. Attitudes Toward the Police Those victims who reported the crime expressed different levels of satisfaction with the police efficiency. Most of the victims in all of the ex-Yugoslav republics were not satisfied with how the police responded to their report. Precisely, over half of the victims in Slovenia, Macedonia and Yugoslavia and even two-thirds in Croatia were dissatisfied with the police reaction. Overall, the most dissatisfied were victims of contact crimes (robberies, assaults and sexual incidents). Like those in other European regions, victims of crimes in ex-Yugoslav republics were most frequently dissatisfied with the police response because: (a) ‘police did not do enough’; (b) ‘were not interested’ or (c) ‘did not find or arrest criminal(s)’. The general level of citizens’ satisfaction with the police performance can be estimated by viewing the answers given to the question relating to satisfaction with the police, in crime controlling, in the area of residence. On the average,

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Table 6. Percentage of unreported crimes (the ‘black figure’ of victimization) Slovenia (Ljubljana)

Croatia (Zagreb)

Macedonia (Skopje)

Yugoslavia (Belgrade)

Theft of car

13.3

2.2

11.8

6.6

Theft from car

46.5

48.8

55.7

57.4

Burglary

41.6

38.9

51.4

28.6

Attempted burglary

80.2

68.4

64.7

72.7

Robbery

57.8

70.6

57.2

61.7

Personal theft

63.7

55.9

61.3

77.9

Assault / threat

68.3

75.0

60.0

73.1

Sexual offences

87.7

97.5

98.9

94.2

Type of crime

Table 7. Percentage of burglary, robbery and assault recorded to the police (one-year) 15 Region

Burglary

Robbery

Assault

Western Europe

79.6

45.5

28.5

Countries in transition

63.2

25.1

20.4

Balkan countries

66.4

33.7

28.2

only one-quarter of citizens in countries in transition favourably judged the police performance.161516 Among the citizens of ex-Yugoslav republics, the most satisfied with the police performance were those in Croatia (38.3 per cent) while the citizens of Yugoslavia were the least satisfied and the most dissatisfied (42.2 per cent of respondents said that the police were not good in crime controlling in their area). Principally, people who experienced victimization tended to judge the police performance less favourably. In the period from 1992 to 1997, the general assessment of the police work in Slovenia worsened – in 1992, half of the respondents pronounced the positive 15  Source: U. Zvekić, ‘Confidence Building in the Process of Democratisation’, in U. Zvekić, B. Stankov, eds., op. cit., p. 137. 16  U. Zvekić, ‘Confidence Building in the Process of Democratisation’, loc. cit., p. 132.

20.1

33.3

Slovenia

Croatia

Yugoslavia

12.2

Yugoslavia

24.4

24.2

13.6

Slovenia

Croatia

Yugoslavia

26.2

39.7

6.5

26.3

19.5

18.6

11.5

19.1

24.3

42.1

3.8

32.3

Solved it by myself / my family solved it

11.5

11.6

13.8

21.1

19.5

37.2

11.5

30.9

18.2

16.0

11.3

28.4

Police could do nothing

Source for countries in transition: op. cit., pp. 128–129.

26.2

Countries in transition

Threat/assault

42.3

29.6

Slovenia

Croatia

23.4

Countries in transition

Robbery

27.0

30.2

Countries in transition

Burglary

Not serious/ no loss

Table 8. Reasons for not reporting crimes (one-year)

19.4

14.5

6.5

18.2

14.6

0.0

3.8

27.7

9.1

22.3

3.8

16.7

Police will not do anything

4.2

1.8

3.2

23.1

4.9

14.6

11.5

13.5

3.0

2.5

0.0

5.6

Fear / Dislike of police

10.5

21.1

8.1

9.6

12.2

10.5

3.8

9.9

6.1

0.0

7.5

6.8

Did not dare

13.2

13.8

37.4

35.3

14.6

0.0

15.4

29.7

6.1

27.4

43.3

34.9

Other reasons

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attitude towards police performance, while in 1997, that figure dropped to 36 per cent. 4.5. Fear of Crime and Victimization Prevention Measures ICVS questionnaire involved three scales for measuring the fear of crime. The items used were: (a) ‘How safe you feel walking alone after dark in your neighbourhood’; (b) ‘Do you avoid certain places or streets full of people, for security reasons, when you go out at night’; and (c) ‘Do you consider it likely that your house will be burgled within the next twelve months’. When asked how safe they felt walking alone in their area after dark, respondents in Yugoslavia were more anxious than others: nearly half of them felt ‘very unsafe’ or ‘a bit unsafe’. On the contrary, two-thirds of the respondents in Macedonia and three-quarters in Croatia felt very or fairly safe. Yet, a general level of safety feelings was slightly higher in ex-Yugoslav republics than it was on the average in countries in transition (Table 9). In fact, the item on ‘walking alone after dark’ measured fear of contact crime, in particular. The rule that fear of contact crime differs among genders was confirmed. On average, two-thirds of females compared to one-third of males felt very or a bit unsafe when walking alone after dark. Females were twice as likely as males to avoid certain places, streets or people when going out alone at night. The differing rates of fear of burglary were not associated with either gender or the actual burglary rates. For instance, the citizens of Macedonia expressed much higher anxiety about likelihood of burglary than those in Yugoslavia and Slovenia even though burglary rates in these cities were distributed inversely. Croatia had both the lowest burglary rate as well as the lowest level of fear of burglary (around one-quarter of the respondents assessed that they were likely or very likely to be burgled in the next year). The citizens in Slovenia, Macedonia and Yugoslavia were much more afraid of the likelihood of burglary than those in other countries in transition (Table 10). The city of Ljubljana experienced a rise in fear of contact from 1992 to 1997, while the fear of burglary declined. However, the rest of Slovenia felt much more secure considering both the contact crimes and burglary. The existence of a strong positive relationship between age and fear of crime seems to be confirmed. Despite the fact that older people had a lower risk of contact crimes, they were significantly more afraid of them than younger. In the Belgrade sample, there was a significant relationship between the age of males and the risk of becoming the victim of assault (χ2 = 35.82; df = 10; p = 0.0001;



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Table 9. Respondents’ assessment of feeling of security in the residental area 17 Very safe

Fairly safe

Bit unsafe

Very unsafe

No answer

Western Europe

28.0

42.2

19.6

9.6

0.6

Countries in transition

13.2

33.3

35.8

17.1

0.6

Slovenia

13.7

42.7

31.4

9.9

2.3

Croatia

32.9

39.4

21.8

5.8

0.1

Macedonia

32.1

31.1

29.6

6.1

1.1

Yugoslavia

21.0

31.2

32.6

14.4

0.8

Table 10. Respondents’ anxiety about likelihood of burglary in the coming year 18 Very likely/Likely

Unlikely

Unknown

Western Europe

29.6

63.0

7.5

Countries in transition

41.1

35.6

23.3

Slovenia (Ljubljana)

62.5

29.0

8.4

Croatia (Zagreb)

28.6

41.3

30.1

Macedonia (Skopje)

73.7

26.3

0.0

Yugoslavia (Belgrade)

51.0

22.0

27.0

1718

C = 0.246),19 utmost affecting males aged between 16 and 25 with declining tendencies in the older age clusters of respondents. Reversely, those least at risk of assault, i.e. the elderly, expressed much more fear about it. As to females there were no significant relationships between age, victimization risk and fear of assault. Respondents who had been victims of burglary were somewhat more anxious about the likelihood of burglary than others (the relationship is significant but 17  Source for Western Europe and countries in transition: U. Zvekić, Žrtve kriminala …, op. cit., p. 80. 18  Source for Western Europe and countries in transition: U. Zvekić, op. cit., p. 81. 19  B. Simeunović-Patić, S. Jovanović, loc. cit., p. 125.

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weak: χ2 = 10.12; df = 4; p = 0.04; C = 0.147).20 Also, women who had been sexually victimized by an unknown offender were much more afraid when going out at night than female non-victims. It was observed that the high level of fear of ‘walking alone at night’ corresponded with the perception of high victimization risk of burglary (both for males and females). But, that correspondence was higher among non-victims. It seems that formerly victimized tended to be afraid of the specific forms of crimes they had already suffered from. In other words, they were frequently affected by so-called ‘concrete fear’. On the other hand, those who had never been victimized were mostly affected by a diffuse fear of crime as whole, the so-called ‘formless’ fear of crime. The level of social cohesion in the neighbourhoods was not favourably judged in ex-Yugoslav republics. Four out of ten respondents in Croatia and Yugoslavia stated that in their neighbourhood ‘people mostly go their own way’. In Yugoslavia, it was concluded that due to the lack of neighbourhood cohesion, this moderately implicated a higher likelihood of burglary: nearly half of those assessed who were ‘very likely’ or ‘likely’ to be burgled were also convinced that in their neighbourhood there was no solidarity. Poor economic conditions affected the low rate of precautions that had been taken around the home in order to decrease the risk of burglary in most of the ex-Yugoslav republics. On the average, 36.5 per cent of the respondents in countries in transition stated that their apartments had no form of protection against burglary. A third of the respondents in Yugoslavia, more than a half in Croatia and more than four-fifths in Macedonia, also replied that they had not taken any precautions around the home.21 There is a lot of empirical evidence that the prevalence rate of firearms possession in households is affected by the level of fear of crime in the population.22 That relationship was also confirmed in the third ICVS survey: Alvazzi del Frate found a strong correlation between burglary or attempted burglary and firearms possession for the crime prevention purpose – the respondents who possessed the firearms for the purpose of crime prevention anticipated the burglary in their apartments as a likely event.23

B. Simeunović-Patić, S. Jovanović, op. cit., p. 127. Only 3.7 per cent of households in Macedonia and 6.9 per cent in Yugoslavia were insured against burglary. On the contrary, 35.8 per cent of households in Slovenia were insured. 22  See: R.W. Harding, ‘An Ounce of Prevention: Gun Control and Public Health in Australia’, 16 Australia and New Zealand Journal of Criminology (1983) pp. 1–19; W.B. Bankston, et al., ‘The Influence of Fear of Crime, Gender, and Southern Culture on Carrying Firearms For Protection’, 31 (2) The Sociological Quarterly (1990) pp. 287–305. 23  A. Alvazzi del Frate, Preventing Crime: Citizens’Experiences across the World, UNICRI Issues & Reports No. 9 (1997) www.unicri.it./documentation/issues&reports/I_R9.htm. 20  21 



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Table 11. Rates of firearm ownership and keeping arms for crime prevention purpose 24 Gun ownership

Keeping guns for crime prevention purpose

Western Europe

17.8

8.6

Countries in transition

11.7

28.7

Slovenia (Ljubljana)

10.6

14.7

Croatia (Zagreb)

16.2

29.9

Macedonia (Skopje)

12.3

14.9

Yugoslavia (Belgrade)

28.6

35.1

The question about the possession of firearms in the household was affirmatively answered by one out of ten respondents in Macedonia and Slovenia, somewhat over 15 per cent in Croatia, and nearly 30 per cent of the respondents in Yugoslavia. One-third of firearm owners in countries in transition, as well as in Yugoslavia and Croatia, replied they owned a weapon for crime prevention purposes. Gun owners in Slovenia and Macedonia frequently designated that reason by 50 per cent (Table 11). While assessing the Belgrade sample, it was found that there was a relationship between the experience of victimization (in particular, previous suffering from assault and burglary) and firearm ownership.25 Hence, this result should be taken with caution because of at least two reasons: first, it is unknown whether the obtaining of weapons had preceded or succeeded the experienced victimization; second, it is possible that the real rate of firearm ownership was undercounted, even significantly – namely, it is assumed that a considerable number of citizens who possessed firearms illegally avoided declaring them.

5. Discussion The results of the third ICVS survey show that overall victimization rates in all ex-Yugoslav republics, excepting Croatia were relatively high in the first half of the 1990s. Hence, the increase of crimes in the beginning of the process of transition (observed by both the official statistics and ICVS) was common for almost all post-communist European countries. 24  Source for Western Europe and countries in transition: U. Zvekić, Žrtve kriminala …, op. cit., p. 83. 25  B. Simeunović-Patić, S. Jovanović, loc. cit., p. 129.

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As in other countries in transition, the property crime (especially vehiclerelated crime) predominantly participated in the structures of conventional crimes in Slovenia, Croatia, Macedonia and Yugoslavia. The thefts of car in Yugoslavia and Croatia reached particularly high dimensions during the last decade.26 Furthermore, the results may suggest the existence of the illegal market of stolen cars. This assumption is hardened by the evidence on the high prevalence rates of car theft, not only in Yugoslavia and Croatia, but also in some of the other surrounding countries such as Hungary (1.8) and Bulgaria (1.3). As some researchers noted, the low rate of stolen car recovery indicates further marketing of stolen cars and the potential presence of organized crime involved in car trafficking.27 Besides vehicle-related crimes, contact crimes (especially assaults and sexual offences) also participated significantly in the patterns revealed in Slovenia and Yugoslavia. The citizens of these countries have been exposed to much higher risks of assaults and sexual offences than those in the majority of countries in transition. Further, it was observed that rates of assault and sexual offences in ex-Yugoslav countries closely corresponded: the higher rate of assault/threat implied the higher rate of sexual offences. One of the prominent theoretical models that gave an explanation to the rapid crime expansion (the rational-interactionist model) underlined two central factors: (1) the increase of motivation for criminal activity, and (2) the increase of opportunity for riskless commission of crimes.28 According to this model, the increase of motivation for criminal activity is an outcome of the social strains and economic deprivation of a large part of the population. High opportunity for riskless commissions of crime tempts many people to commit a profitable criminal offence. The opportunities for riskless commissions of crime, especially burglary and property crime in general, are higher if the few self-precautionary measures are adopted by potential victims. 26  It should be noticed that the ‘opportunity model’ could not be confirmed in this case. Namely, the car ownership rates in these countries, especially in Slovenia, were high compared to other countries in transition (the car ownership rates in 1996 in Slovenia, Croatia, Macedonia and Yugoslavia were 83.5, 71.0, 74.0 and 67.8, respectively). Despite the highest car ownership rate, Slovenia exhibited a lower rate of car theft compared not only with those in other ex-Yugoslav republics but also with the average rate for countries in transition. Contrary, Yugoslavia had the lowest car ownership rate of all ex-Yugoslav republics but the highest rate of car theft. The moderate negative relationship between the scales of car ownership and the rates of car thefts was also identified in the whole group of countries in transition. See U. Zvekić, Žrtve kriminala …, op. cit., pp. 35–36. 27  See A. Alvazzi del Frate, ‘The International Crime Victim Survey: A Global Overview with a Focus on the Balkan Region’, in U. Zvekic, B. Stankov, eds., op. cit., p. 145; U. Zvekić, Žrtve kriminala …, op. cit., p. 38. 28  For a thorough treatment of this point, see J.J.M. van Dijk, ‘Understanding Crime Rates: On the Interactions between the Rational Choices of Victims and Offenders’, 2 British Journal of Criminology (1994) pp. 105–121.



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In the case of the ex-Yugoslav republics, particularly in the case of FR Yugoslavia, this theoretical model is satisfyingly engaged to some extent. In the last decade, Yugoslavia’s drastic economic crisis resulted from an unsuccessful starting of the political and economic reforms, wars in the surrounding areas, UN sanctions introduced in 1992 and a huge influx of refugees from Croatia and Bosnia and Herzegovina. Industrial production have constantly decreased from year to year. The economic deprivation affected all social classes while large number of people lost their jobs. A huge number of Yugoslav citizens were deprived of the elementary living conditions and found themselves on the border or within the poverty zone. It is obvious that the number of people motivated to choose illegal activities as the only possible means to provide them chances for living was expanded. The significant increase of crime in Serbia and Belgrade in the first half of the last decade was observed by both ICV Surveys and official statistics. For instance, official data show that the number of reported crime offenders in Belgrade in 1994, rose three times compared to 1990. The biggest crime increase was found in serious property crime and violent crime, especially robbery.29 The number of homicides in Belgrade rapidly inclined from 1990 to 1994.30 In this period, there were twice as many homicides committed as in the previous five-year period.31 The increase of motivation for criminal activity was also affected by a crisis of pro-social values and attitudes, weaknesses of social organizations and social networks. The ICVS results revealed that all of these circumstances were present in most of the ex-Yugoslav republics. Dissatisfaction with the police and public administration, the evident decrease of police efficacy in crime controlling, poor assessment of cohesion in immediate social surroundings were some indicators of a weakened social organization. On the other hand, the low affluence in most of the ex-Yugoslav republics effected the infrequent use of capable measures against household crimes and property crimes in general. The high rates of sexual and physical violence against women, especially domestic violence are most often explained as an outcome of three main factors: the first is the economic deprivation of a huge number of males in the population which causes the stress that may culminate into violence against women; the second is the existence of traditional cultural models which promotes violence as a legitimate mean of males’ control over women, and the third is relating 29  V. Nikolić-Ristanović, ‘Viktimizacija kriminalitetom u Beogradu: Uticaj rata i društvenih promena’, 1 Temida (1999) p. 33. 30  Data on homicide rates and clearance homicide rates obtained personally from the evidence of District Public Prosecutor’s Office in Belgrade. 31  On the other hand, the homicide clearance rate declined significantly. Somewhat more than 30 per cent of homicidal victimizations which occurred in Belgrade from 1990 to 1994, remained uncleared, while the homicide unclearance rate in the period from 1985 to 1989 was only 6.2.

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to a ‘macho’ syndrome which comes into many spheres of public and private relations between the genders. It was more or less evident in almost all of the ex-Yugoslav republics. The rates of males’ violence against women in some of them were significantly higher compared with those observed in other countries in transition. It is understandable that the refinement of machismo and its promotion as legitimate, even desirable social attitude during the war-times certainly infected the relations between genders, particularly in families. Respecting these facts, it should be noticed that the problem of violence against women in ex-Yugoslav republics was probably much greater than it seems than in the ICVS findings. That estimation is strengthened by taking into account the beliefs of the National coordinators for Macedonia and Yugoslavia, that sexual and physical victimization were rarely declared by women. Namely, it was observed that one part of female respondents refused to discuss their intimate lives, especially if the presence of other family members could not be avoided during interviewing.32 The prevalence of firearm ownership is commonly used as a strong indicator of general risk from violent crime.33 The extremely high weapon ownership rate in Belgrade coincided with the high rates of contact crimes observed through the ICVS. It is assumed that increasing feelings of insecurity affects an increase of firearms ownership rates and that multiple firearms ownership enlarges the risk of contact crime, and finally, that compounded risk from contact crime affects the increase of fear of crime, we face with vicious cycles of phenomena that constantly amplify each other. From 1991 to 1995, the firearm homicide rate in Belgrade doubled compared with the previous five-year period. It should be stated, that firearms fuelled the increase in total homicides in Belgrade: the firearm homicide rate increased much more than the overall homicide rate. Even the rate of involuntary manslaughter involving firearms increased three times from 1990 to 1993.34 While analyzing the contact crime rates in ex-Yugoslav republics it is necessary to pay attention to some other factors that could also facilitate them. As a rule, in war-times the risk of exposure to institutionalized modelling of aggression, media violence and ‘macho’ modelling is increased. Through the process of negative modelling there is a set of macho attitudes that appears to 32  See V. Nikolić-Ristanović, ‘The International Crime Victim Survey in Belgrade …’, loc. cit., pp. 551–552; V. Caceva, loc. cit., p. 379. 33  On this point see e.g., M. Killias, ‘International Correlation between Gun Ownership and Rates of Homicide and Suicide’, 148 Canadian Medical Association Journal (1993) pp. 1721–1725; H. Price, E. James, A. Sherry; W.A. Bedell, S.K. Telqohann, ‘Reduction of Firearm-Related Violence through Firearm Safety Counseling’, 6 Archives of Family Medicine (1997) pp. 79–83; J.J.M. van Dijk, ‘Kriminalna viktimizacija: Globalni osvrt’, 1 Temida (1999) p. 6. 34  B. Simeunović-Patić, ‘Odnos modela formalne kontrole vatrenog oružja i rizika viktimizacije ubistvom’, 3 Bezbednost (2001) pp. 329–333.



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be preferred by observers in the solving of their interpersonal problems.35 It is widely assumed that observed violence which is realistic, frequent and rewarded is more likely to be imitated by observers.36 War-times, apparently, provide plenty of opportunities to observe violence in such a way.37 The prevalence rates of corruption in Yugoslavia and Croatia, not surprisingly, were extremely high. It is well known that bribery of public servants is particularly prevalent in countries with poorly paid and untransparent public administration engages much more on exerting a power over the citizens rather than servicing them.38 It is not possible to estimate the dimensions of corruption of political and financial centres of power only on the basis of data on prevalence of the ‘routine’ corruption. Yet, the widespread routine corruption undoubtedly implicates lack of democracy, poor organisation of public administration and ineffectiveness of regulative mechanisms of the State. Significantly lower prevalence rates of corruption in Slovenia compared to those in other ex-Yugoslav republics, might be the result of the faster and more successful process of democratization in this country. The data on rates of consumer fraud revealed that market economies in all of the ex-Yugoslav republics with the exception of Slovenia were poorly developed and insufficiently regulated, making consumers exposed to risks of be cheated in many different ways. Despite that, even though a half of the victimized respondents in ex-Yugoslav republics considered their victimization as a serious event the majority of crime occurrences remained unreported to the police. One of the reasons for not reporting could be the lack of confidence in police performance which was especially high in Croatia. Besides, many of those who reported victimization were unsatisfied with the police reaction. The problem of the lack of citizens’ confidence in the police could be resolved by a radical improvement, both of police efficacy and treatment of crime victims, especially those with experience of repeated victimization who asserted particular dissatisfaction with the police work. It should be pointed out that some of the crime victims in Yugoslavia refused to participate in the survey, expressing their anger towards the indifference of

35  See e.g., J.H. Goldstein, B.J. Bredemeier, ‘Sport and Socialization: Some Basic Issues’, 27 Journal of Communication (1977) pp. 154–159; R.H. Prisuta, ‘Televised Sports and Political Values’, 29 Journal of Communication (1977) pp. 94–102. 36  See e.g., J.H. Goldstein, Aggression and Crimes of Violence (New York 1986) pp. 32, 64; L. Berkowitz, ‘Frustration-Aggression Hypothesis: Examination and Reformulation’, 106 Psychological Bulletin (1989) pp. 59–73. 37  See e.g. D. Archer, R. Gartner, Violence and Crime in Cross-National Perspective (New Haven 1984) pp. 65ff. 38  U. Zvekić, Žrtve kriminala …, op. cit., p. 56.

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the police and courts.39 Also, many of the victims of burglary and robbery who agreed to be interviewed replied that they found themselves ‘exploited’ for the purposes of criminal processes as ‘source of evidence’, while there was ‘no further interest for their situation’.40 Most of the victims in ex-Yugoslav republics did not receive any help from the specialized agencies. After all, with the exception of support services for battered women and female victims of sexual offences, there were no specialised victim support agencies in these countries. Yet, it was observed, that on average, two-thirds of victims (particularly victims of burglary and contact crimes) expressed a need for such agencies. The results of the ICVS revealed that fear of crime, particularly fear of burglary was widespread in ex-Yugoslav republics affecting both genders to the same extent, while fear of contact crime was significantly more frequently identified among females. However, these results should be taken with caution because of the possibility that males tended to hide their personal feelings of insecurity.41 The findings of this survey also disclosed that fear of burglary was contributed not only by lack of effective measures against burglary (such as special locks, burglary alarms, etc.), but also by lack of neighbourhood cohesion. It suggests that some action on the community level concerning withstanding both the household victimization risks and the fear of crime was required in all ex-Yugoslav republics. Finally, it is important to point out that the problems of increasing crime rates, fear of crime and the lack of confidence in the police should be also discussed, particularly concerning the broader context in which the processes of the socalled ‘transition’ and war co-existed and amplified one another throughout the 1990s, in some of the ex-Yugoslav republics. The process of economic ‘transition’ began with rapid and a more or less under(un)controlled privatization and the ‘capital accumulation’ that were apprehended as extremely unjust and illegitimate by the majority of the population. Weakening of the State (especially progressive in the war-times) encouraged and advanced uncontrolled and illegitimate privatization as well as an illegal economy (directly or indirectly linked with the war situation). In that light, the lack of confidence in the police should be also interpreted as a part of broader dissatisfaction and mistrust in institutions of the State and the State as a whole, because of failing it’s regulatory mechanisms and whose institutions de facto represented and symbolized the custodians of the new, unjust economic and social reality.

39  40  41 

V. Nikolić-Ristanović, ‘The International Crime Victim Survey in Belgrade …’, loc. cit., p. 551. B. Simeunović-Patić, S. Jovanović, loc. cit., pp. 132–133. V. Nikolić-Ristanović, ‘The International Crime Victim Survey in Belgrade …’, loc. cit., p. 555.



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6. Concluding Remarks The results of the ICV Survey revealed that some of the ex-Yugoslav republics, particularly FR Yugoslavia, faced a significant rise of crime that resulted from the undermining of social organization and regulation in the situation of proximity of war-zones and dynamic political end economic changes in the post-communist period. Consequently, the necessity of integral improvement of crime prevention as well as victimization prevention strategies emerged in these societies. Discussion on plausible strategies in crime prevention exceeds the aim of this paper. Nevertheless, it can be noted that any ambitious crime prevention strategy should involve either a programme for increasing police efficacy in crime controlling and a programme focused on community crime prevention and motivating citizens to participate in it. Programmes relating to firearm control as well as programmes that focused on the reducing of opportunities for aggressive and intolerant models, in the process of defining acceptable social attitudes, should also be parts of crime prevention strategy. However, the most important step toward successful crime controlling seems to be a general progression of the process of political and economic transitions, democratization of institutions and societies as a whole and the recovering of social organization and regulation. The alleviation of deep economic deprivation of citizens should be one of the substantial factors of crime rates reduction. The improvement of the legal position of crime victims and their treatment, as well as the enlarging of networks of specialized victim support agencies, have also figured as important tasks within the new Balkan countries. Further crime victim surveys will show the level of success of each of the ex-Yugoslav republics in combating crime, as one of their most serious social problems.

Understanding a ‘Culture of Violence and Crime’: the Kanun of Lek Dukagjini and the Rise of the Albanian Sexual-Slavery Rackets Jana Arsovska Department of Criminal Law and Criminology, Katholieke Universiteit Leuven, Belgium

1. Introduction In the last decade there have been numerous international and local publications trying to summarise the organised crime situation in the Balkans. Press images of this region have repeatedly drawn upon the themes of hostility, violence and organised criminal activities. Along with the themes of disintegration and perplexity, violence and organised crime have become encompassing and evocative components of the term ‘Balkan’. While the vision of the Balkans as a permanent or ‘natural’ source of violence and instability in Europe predates World War I, it gained new currency particularly during and after the wars of the Yugoslav Succession (1990s). Nonetheless, the Balkan region is inhabited by seven major nationalities and a number of ethnicities each with its own uniqueness and defining character. Recently, among all these ethnicities one has particularly attracted the international attention. According to many sources ethnic Albanians have been massively involved in various criminal activities. A number of ethnic Albanian criminal groups have been swiftly taking over criminal markets all over Europe. They have become known as one of the main threats to the EU and Norway.1 These ‘ferocious’ criminal groups have escalated from being simple service providers to other organised crime groups to reaching the highest echelons of international organised crime. They have been depicted as ultra-violent, hierarchical, disciplined and often homogeneous, as well as based on ‘loyalty’ (having very strict codes of conducts), ‘honour’ and clan traditions. They have been also described as

1 

EU Organised Crime Report (The Hague 2003) p. 14; (The Hague 2004) p. 8.

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relatively ‘old fashioned’.2 Because of these characteristics the ethnic Albanian crime groups have often been associated with the traditional Sicilian Mafia. Nonetheless, research studies readily point out that the most significant features of the ethnic Albanian criminal groups are their cruelty and readiness to use violence.3 They have been using intimidation to maintain discipline, silence and absolute unity within the criminal groups, to settle inter-groups disputes and to control their victims. Violence and threats have also been used against law enforcement and judicial officials. According to law enforcement agencies, the members have not hesitated to use violence at any given occasion.4 The frequent use of violence has been also regularly confirmed by various victims of ethnic Albanian criminals. In a number of available reports based on victims’ statements, ethnic Albanian criminals have been described as highly aggressive.5 This ultra violent behaviour can readily be observed in the cases of trafficking of human beings. Besides trafficking of human beings, including children, for so-called ‘medical purposes’, the ethnic Albanian organised crime groups have also been involved in drug and arms trafficking, trafficking of human organs, exploitation of prostitution (in many cases linked to episodes of slavery), facilitating illegal immigration, extortions and all kinds of property crime.6 One Italian prosecutor made clear that, ‘Albanian organised crime has become the point of reference for all criminal activity today. Everything passes via the Albanians’.7 As a result Westerners have readily associated Albania and ethnic Albanians with the problem of international security. They have been combining this recent evolution of violent organised crime activities with the historical stereotypes of the Albanians as ‘bloodthirsty’ tribesmen, concluding that individual interests, revengeful nature and lack of laws and culture are the explanation for such behaviour. However, what many Westerns have failed to elaborate on is the degree to which the social construction of right and wrong across the broad social, historical and cultural landscape can shape the definitions of and responses to 2  R. Mutschke, ‘The Threat Posed by the Convergence of Organised Crime, Drug Trafficking and Terrorism’, Congressional statement (13 December 2000) ; 2004 EU Organised Crime Report (The Hague, 2004) p. 8. 3  V. Hysi, ‘Organised Crime In Albania: The Ugly Side of Capitalism and Democracy’, in C. Fijnaut, et al., ed., Organised Crime in Europe – Concepts, Patterns and Control Policies in the EU and beyond (The Netherlands 2005) pp. 537–562 (p. 546). 4  2005 EU Organised Crime Report (The Hague, 25 October 2005) p. 27. 5  V. Hysi, loc. cit., p. 546; IOM and ICMC, Research Report on Third Country National Trafficking Victims in Albania (Tirana 2002) p. 5. 6  V. Hysi, loc. cit., p. 546; 2005 EU Organised Crime Report (The Hague, 25 October, 2005) p. 30; G. Prato, ‘The Devil is Not as Wicked as People Believe, Neither is the Albanian’, in I. Pardo, ed., Between Morality and the Law: Corruption, Anthropology and Comparative Society (UK 2004) pp. 69–85 (p. 70). 7  B. Barron, ‘Albanian Mafia Steps Up People Smuggling’, BBC News Online (August 3, 2000); Marko Milivojevic, ‘The Balkan Medellin’, 7 Jane’s Intelligence Review (1995) p. 5.



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‘deviant’ behaviour. The treatment of right and wrong, known in sociology as social control, occurs in various forms throughout the social universe, wherever people intermingle. Conversely, from the second half of the 20th century, scholarly work has concentrated mainly on a single category of social control: law. As Donald Black in his book The Social Structure of Right and Wrong explains, an emphasis on law – governmental social control – has been the focus of research for various scholars, most of whom have further narrowed their research areas to legal life in modern societies such as the United States or Western Europe.8 As a result, many scientists have forgotten to ask some crucial questions: Whether and how does law vary across social and cultural space? Is it possible to approach social control as a dependent variable that differs from one situation to another? In ‘Western Europe’, for example, it is regarded as a nearly cultural axiom that ‘violence’ and ‘crime’ are morally bad, illegal and illegitimate.9 However, is there a sense in which conduct regarded as criminal is often quite the opposite? Should violence and crime be always regarded as immoral, arbitrary, meaningless, pathological or antisocial? Can they be patterned, directed, significant, normal and constitutive of the social? This article, through an extensive literature review and personally conducted interviews, will try to elucidate the nexus between the ancient Albanian legalmoral code, the Kanun of Lek Dukagjini and the ‘violent behaviour’ of the contemporary Albanian organised crime groups. The article will explore from a historical and cultural perspective why Albanian organised crime groups have come to be regarded as ‘ultra-violent’ actors in a Western context. Since trafficking of women for sexual exploitation is becoming a predominant activity of the ethnic Albanian criminals, the article will mainly try to link the Albanian perception of women in society with the rise of the Albanian sexual-slavery rackets. Specifically it will examine the role of the 15th century Kanun, regarded as the foundation of the Albanian culture, in defining the traditional role of the Albanian woman and her relation to the ‘superior’ man. Finally, the article will try to assess, the degree to which trafficking of women for sexual exploitation in an ethnic Albanian context should be regarded as intentional violation of prohibition or as a morally justified act. Before proceeding, I would like to clarify that the term ‘ethnic Albanian’ refers to ethnic Albanians from Albania, Kosovo, Macedonia and other parts of the world, and not just to Albanian nationals. The basic conditions for considering a group ‘ethnic’ are that the group must have occasional or regular interactions with other groups and it must entertain ideas of those groups as being culturally different from themselves. In other words, ethnicity can be defined as social 8  9 

D. Black, The Social Structure of Right and Wrong (USA 1993) p. 2. J.B. Allcock, Explaining Yugoslavia (New York 2000) p. 388.

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identity.10 However, I can not stress enough the fact that I am aware of the enormous differences that exist among people with the same ethnic identity; therefore, the aim of the article is not to generalise the findings for the entire ethnic Albanian population, but only to raise questions about the behaviour of certain segments of the population. This article is based on an ongoing PhD research project; therefore further analysis is still required.

2. The Kanun of Lek Dukagjini and the Albanian Social Habitat 2.1. The Albanian Social Habitat The sociology of knowledge argues that scientific thought, particularly thought on social and political matters, does not proceed in a vacuum, but in a socially conditioned environment. It is influenced mainly by unconscious or subconscious elements. These elements, as Karl Popper explicates, stay concealed from the thinker’s observing eye because they form the exact place that he/she inhabits, his/her social habitat. The social habitat of the thinker determines a whole system of values and theories, which emerge as self-evident to him/her. They appear as if they were logically and unquestionably true, such as, for instance, the phrase ‘all tables are tables’. It is usually preposterous for the thinker to test the validity of such apparent ‘common sense’ statements, since they are considered ‘true’ in his/her own cultural and social habitat. This is why he/she is not even aware of having made any assumptions in the first place. However, one can notice the assumptions when comparing him/her with a thinker from a different social habitat. The second thinker, most likely, will also proceed from a certain system of apparently incontestable assumptions that may be very different from the first. 11 Furthermore, Marvin Wolfgang and Franco Ferracuti, one of the most famous criminologists, postulate in their book the Subculture of Violence Theory, that like all human behaviour, violence and violent assaultive crimes have to be viewed in the terms of the historical, social and cultural context from which they spring.12 Even the most horrific acts of brutality are not simply a product of an ‘evil mind’ but have logic behind them. They do not evolve as a product of a chaotic, unpredictable and disorderly mind but instead have an unfolding personal logic that draws upon accepted practices within particular subgroups within society.13 Donald Black further explains that viewed in relation to law T. Eriksen, Ethnicity and Nationalism. Anthropological Perspective (London 1993) p. 12. K. Popper, The Open Society and Its Enemies, vol. 2 (London 1993) p. 213. 12  M.E. Wolfgang, F. Ferracuti, The Subculture of Violence: Towards an Integrated Theory in Criminology (London 1967) p. 150. 13  D. Canter et al., eds., The Social Psychology of Crime: Groups, Teams and Networks (UK 2000) p. 13. 10  11 



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various forms of violent crimes can be seen as mechanisms of social control, or as a traditional self-help.14 No matter how controversial it might sound, there are forms of ‘legitimate’, ‘obligatory’ and ‘honourable’ violence maintained by some societies because it helps them survive and obtain social order or it gives them a more meaningful perspective of life.15 For example, Albania is a country that has been veiled in mystery for many years. For almost 50 years Albania has been associated with a communist regime under the leadership of Enver Hohxa (1944–1985). It has been remote from the rest of the world and the reality behind the regime has been inaccessible to outsiders.16 However, many accounts show that it is the Kanun of Lek Dukagjini, that has remained as the most distinctive and unique feature of the society, mostly unknown and misunderstood outside Albania’s borders. This Kanun sets up the rules upon which the culture is based, primarily focusing on the concept of honour. It includes specific clarifications of the manners and rights of retaliatory killings for restoring honour to the offended when a law is disobeyed. The foundation of it all is the principle of personal honour. Next comes the equality of persons. From these flows a third principle, the freedom of each person to act in accordance with his own honour, within the limits of the law, without being subject to another’s command. And the fourth principle is the word of honour, the besë (def.: besa), which creates a situation of inviolable trust.17

In the following I will try to briefly illustrate in which ways these fascinating laws have defined the unique social and cultural habitat of the ethnic Albanians. 2.2. The Historical Significance of the Kanun It was Lek Dukagjini, the Second ‘Lord of Dagno and Zadrima’ (1410–1481), who formalised the Kanun laws, regulating every aspect of the Albanian community life. The members of the Dukagjini family were feudal rulers with a sphere of influence stretching from Zadrimi to the convergence of the Black and White Drin Rivers (now mainly in Kosovo).18 Margaret Masson Hasluk, who lived in Albania from 1926–1939 and who wrote The Unwritten Law in Albania, describes Lek’s authority as powerful and influential. Hasluk also reported that Lek fought D. Black, The Social Structure of Right and Wrong (USA 1993) p. 27. V. Goldsworthy, ‘Invention and In(ter)vention: The Rhetoric of Balkanization’, in D. Bjelic et al., ed., Balkan as a Metaphor (London 2002) pp. 26–38. 16  S. McClear, Albanians and their Culture: A Study of Their Defining Character and Uniqueness (USA 2001). 17  N. Malcolm, Kosovo: A Short History (New York 1998) p. 18; UK Home Office, Albania Country Report 2004, Country Information and Policy Unit (April 2004). . . 18  S. McClear, Albanians and Their Culture: A Study of Their Defining Character and Uniqueness (USA 2001). 14  15 

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against the Turks, surrendering ‘only when the Turks promised to respect the unwritten laws of the mountains’.19 Edith Durham complements Hasluk’s view and vividly depicts the image of Lek among the ethnic Albanians: His fame among the tribes that still bear his name far exceeds that of [the Albanian hero] Skenderbeg … For the people ‘Lek said so’ obtains far more obedience than the Ten Commandments. The teachings of Islam and of Christianity, the Sheriat and Church law, all have to yield to the Canon of Lek.20

Despite the fact that the name Dukagjini is closely connected to the Kanun laws, modern scholars commonly now agree that he was not its original author. Potentially, the practice of these codes, dates back to 2000 to 3000 years ago and presents the fundamental customary law employed in the Middle Ages in almost all areas of Albanian settlement.21 Nonetheless, Lek Dukagjini was a follower of the laws and his intention was to limit the cycles of bloodletting among the mountain tribes – which sometimes destroyed entire communities – by enabling a council of tribal elders to arrange a besa (word of honour, pledge, loyalty) once honour had been obtained. The aim was to decrease the serious social and economic dislocation that resulted from so many men being killed or forced into hiding by the cycle of revenge.22 People very often associate the Kanun simply with the primitive and notorious ‘rules of the blood feuds’; however, the 1263 articles of the Kanun are much more than that. The Kanun contains various regulations for women, guests, church, family members, etc. Some of the Kanun’s regulations are often regarded by outsiders as good and essential for the survival of ethnic Albanians, and some as bad and regrettable. The blood feuds are one of the infamous regulations of the Kanun that in fact are not unique to Albania. They can be found in other isolated societies of the Mediterranean (such as Corsica) or in the Northern Caucuses.23 These customary social codes were regarded as official laws until 1912, yet they were largely unknown outside of Albania until Shtjefen Gjeçovi, a Franciscan priest, began collecting details in 1913. In 1931, these details were published in the form of articles under the title ‘Kanuni i Lek Dukagjinit’. The Kanun was divided into 12 books covering all aspects of the Albanian community life.

M. Hasluck, The Unwritten Law in Albania (Cambridge 1954) p. 14. E.M. Durham, High Albania, 2nd ed. (London 1994) p. 25. 21  M. Camaj, The Code of Lekë Dukagjini. Trans. Leonard Fox. Comp. Shtjefën Gjeçov (New York 1989) p. xvi. 22  S. McClear, Albanians and Their Culture: A Study of Their Defining Character and Uniqueness (USA 2001) Women traditionally were exempt from the feuds although recently there have been a few cases where women have been killed. 23  N. Malcolm, Kosovo: A Short History (New York 1998) p. 19; also Robert Carver in his book The Accursed Mountains informs us that this Albanian code most closely resembles the puktunwali of North-western India. R. Carver, The Accursed Mountains (London 1999) p. 308. 19  20 



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Not only did the Common Law provide enforceable legal mechanisms which ensured a relatively normal evolution of society and the normality of the economy, social and family relations, it also provided mechanisms for organizing local government and for the settlement of disputes.24

The Kanun of Lek Dukagjini itself was an expression of the independence and de facto autonomy of the northern Albanian clans, but sources show that its influence (the notion of honour and besa) was also felt in the southern part of the country. The Kanun was created as a result of the inner need of a whole population in order to defend the very existence of the nation in the face of the threat of assimilation by ‘superior’ civilisations of invaders and occupiers. Sources show that the Albanians absolutely respected and obeyed the rules as laid down in the Kanun and escaped extinction as a nation. They survived with their distinct culture and language, succeeded in preserving a unique civilisation.25 Syrja Pupovci, the writer of the preface of the 1972 reprint of the Kanun, explains that, ‘the preservation of customary law was one of the most important elements in helping the Albanian people to maintain their individuality under Ottoman domination’.26 These ‘ferocious’ and ‘violent’ laws were in fact, what Donald Black describes traditional self-help. 2.3. The Kanun and the Upheavals of the 20th Century During the communist era (1944–1991) the ruling party discouraged the use of the blood feud and other regulations of the Kanun, as means of resolving disputes. Communist leader Enver Hoxha described the Kanun as a legacy of feudalism, and officially outlawed its use. Under Hoxha’s regime ‘it was forbidden to “defend the honour of the family”. Anyone practicing the age old custom was severely punished; murderers were condemned to death and their families driven into isolated areas of the Prokletije Mountains’.27 However, the communists themselves were using ‘Kanun-type’ reasoning when practicing ‘justice’, since the punishments were aimed as much at a man’s family as at the man himself.28 As Carver explains, ‘the communists nationalized hakmarrje [blood feud], then, all revenge killings were to be carried out by the party … Everyone owed them blood’.29 24  A. Alibali, ‘On the Current Situation of Albanian Law and the Challenges for the Next Century’, 1 International Journal of Albanian Studies (1997) http://albanian.com/IJAS/vol1/is1/art3.html. 25  P. Qesku, The Albanian Implosion (February 27, 1999) ch. 11, http://www/albania.mcmail. com; I. Kadare Broken April (New York 1998). 26  M. Vickers, The Albanians: A Modern History (London 1997) p. 21. 27  B. Jolis, ‘Honour Killing Makes a Comeback’, Albanian Life (Spring 1997) p. 30 (reprinted from The Guardian, 14/8/96). 28  S. McClear, Albanians and Their Culture: A Study of Their Defining Character and Uniqueness (USA 2001). 29  R. Carver, The Accursed Mountains (London 1999) p. 305.

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The oppressive communist regime also did not allow for any cultural development, especially when compared to Western countries. Therefore, even though suppressed, the ancient creeds remained the foundations of Albanian culture. The Kanun laws were regarded as ‘an expression and reflection of the Albanian character, a character which embodies an uncompromising morality based on justice, honour and respect for oneself and others’.30 These laws survived five centuries of Ottoman occupation and almost 50 years strict communism only to appear again in Albania and post conflict Kosovo.31 Today it seems that in Albania, Kosovo and other parts of the Balkans ethnic Albanians are acquainted to some degree with the contents of the code from oral tradition – although perhaps only a few have actually read it. Its influence on Albanian society might be loosely compared to that of the Bible in Western culture, where the deeply religious, the casual believers, and agnostics and atheists alike use biblical metaphors and parables almost unconsciously. In an interview with the BBC World Service, Ismet Elezi, professor of law and specialist in the Kanun, explained that he had conducted a survey which shows that today few people under 35 know the exact wording of the Kanun – yet many invoke it as an excuse to kill or be abusive.32 According to Ardian Visha,33 Director of Foreign Affairs in the Prosecutor’s Office in Tirana, the importance of the Kanun to the ordinary life of Albanians is hard to quantify, other than that it has been a part of the culture for centuries. Visha explains that many people in Albania do not wish to talk about the Kanun laws directly, yet its existence can be felt in their everyday lives. Often sources point out that the Kanun, as an important part of the Albanian social habitat, has great influence on the underlying values behind violent and criminal acts, making certain segments of the ethnic Albanian population ‘naturally more aggressive’, ready to use violence and to easily ‘disregard’ the official ‘Westernised’ laws. The former Albanian Ambassador to London, Pavli Qesku, states that, ‘the Albanians respect the law when the law is part of their own raison d’etre, when the law emerges as an intrinsic part of the Albanian community, as an inner requirement for an orderly life’.34 What is most important for this article is to analyse few particular ways in which the traditions and the

30  A. Neza, Albania (Tirana 1997) p. 108; L. Fox, trans., The Code of Lekë Dukagjini/Kaunui I Lekë Dukagjinit. Comp. Shtjefën Gjeçov. (New York 1989); quoted in Mediator of Blood and Albanians and their Culture. 31  H.B. Riber, ‘The Mediator of Blood’, Oslo University Collage (May 2003). 32  M. Mortimer, A. Toader, ‘Blood Feuds Blight Albanian Lives’ BBC World Service News (Shkodra, Albania 23 September, 2005), http://news.bbc.co.uk/2/hi/europe/4273020.stm. 33  A. Visha, Director of Foreign Affairs, Prosecutors office, Tirana, Albania (presentation at the Center for Information and Research on Organised Crime CIROC (The Netherlands, June 2004). 34  P. Qesku, The Albanian Implosion (February 27, 1999) ch. 11, http://www/albania.mcmail.com.



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folk culture associated with the Kanun have shaped the ‘Albanian character’ and had ‘defined’ the social relations certain segments of the Albanian population.

3. The Kanun and the Traditional Role of Albanian Women An ‘unfortunate’ aspect of the Kanun, and the focal point of this article, is the life it prescribes to women. The Kanun is very specific about the role of the women in the Albanian society (Book 2: The Family; Book 3: Marriage; Book 8: Honour, etc.). Primarily, Albanian society has a long history of male domination in which women are taught to obey their husbands and accept their own submissive roles. This is a reflection of the strong patriarchal traditions of the Balkans.35 Before World War II, Albania was a largely rural country with a strong peasant culture. This meant that traditional patriarchal values dominated much of society, defining gender roles and relations that persisted throughout the communist era and, to an extent, into the present. Furthermore, the patriarchal rural family fostered the ideal of a compliant and passive woman, at first obedient to father, and then to husband. However, the role of the Kanun is certainly crucial in this analysis because it set up the basic rules defining the social relations between women and men in Albanian society.36 According to the Kanun, a man has the right to beat and publicly humiliate his wife if she disobeys him. He is also allowed to cut her hair, strip her nude, expel her from the house and drive her with a whip through the village. The Kanun specifies that a man may kill his wife for two reasons: infidelity and betrayal of hospitality. It forbids women from speaking with guests who visit the house or entering the men’s room without being asked by her husband.37 One of the notorious articles of the Kanun states: ‘a woman is known as a sack, made to endure as long as she lives in her husband’s house’.38 Additionally, the UK Home Office country report on Albania specifies that the value of a woman has been seen as equal to half a man or a dog; therefore, according to the Kanun the women do not have rifles and they do not have blood feuds. ‘Under the Kanun, a woman’s duty is to serve her husband and to be subordinate to him in all matters. Similarly, these same sections [north Albanian men] of Albanian society view women as lesser citizens, equating them in value to “half a man” or

A. Baban, Domestic Violence against Women in Albania, UNICEF report (Tirana 2004) p. 13. UNICEF Report, Mapping of Existing Information on Domestic Violence in Albania (Tirana 2000). 37  A. Baban, Domestic Violence against Women in Albania, UNICEF report (Tirana 2004) p. 13. 38  L. Fox, trans., The Code of Lekë Dukagjini. Trans. Comp. Shtjefën Gjeçov (New York 1989) Article xxix. 35 

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a “dog”’.39 Hence, a woman cannot properly avenge a murdered relative and she can not be an equal replacement for the life of a murdered man.40 The Kanun consigned women to very restrictive roles, and did not allow them to own property or have any say in the choice of the husband. According to the Kanun, to marry means the following things: (1) to form a household, adding another family to the household, for the purpose of adding to the work force and increasing the number of children; (2) the young woman, even if her parents are not alive, does not have the right to concern herself with her own marriage; this right is held by her brothers or other relatives; and (3) the girl who is betrothed may not reject the young man, even if she does not like him. If the girl refuses to submit to her fate under any circumstances, and her parents support her, she may never marry another man; however, if the parents do not support her, she should be handed over to him (her fiancé) by force, together with a cartridge, and if the girl tries to flee, her husband may kill her with her parents’ cartridge.41 Although Albanian women have had legal rights for decades, the Kanun’s influence continues to be felt within the family structure that still ‘forces’ many Albanian women into traditional roles. The great gap between women’s theoretical emancipation promoted during the communist period and the circumstances of everyday life undermined the slogan ‘women’s equality to men’. Even today, women often claim that ‘Most Albanian men do not value women. They see them as slaves who have to take care of the children, of the house, do all the work and that’s it.’42 Refleksione is one of the very active Albanian NGOs working in the realm of protection from domestic violence. This organisation claims that domestic violence is one area where the Kanun does not lend itself to modern Western norms. Minnesota Advocates for Human Rights, assisted by Refleksione published a report in April 1996 entitled Domestic Violence in Albania. They explained that, ‘although the Kanun does not have the force of law, it still influences attitudes and opinions in some parts of Albania… it also provides that men have the right to beat and publicly humiliate their wives if their wives disobey them’.43 Hence, more than 63% of the women surveyed reported that they have been abused by their husbands or partners and more than half had been beaten.44

UK Home Office, op. cit., reference to the US SDR 2003 report. L. Fox, trans., The Code of Lekë Dukagjini. Trans. Comp. Shtjefën Gjeçov (New York 1989). 41  L. Fox, trans., op. cit. 42  Dorina, 22 years old, divorced, mother of one child quoted in A. Baban, Domestic Violence against Women in Albania, UNICEF report (Tirana 2004) p. 25. 43  Minnesota Advocates for Human Rights, Domestic Violence in Albania (Minneapolis, Minnesota, April 1996) pp. 8–9. 44  Minnesota Advocates for Human Rights, op. cit. 39 

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Roberto Laurenti, UNICEF representative in Albania in one UNICEF report also explains that the Kanun still contributes significantly to the social exclusion of women in Albania today.45 According to this report, many men, especially those from the north-eastern part of the country, still adhere to this traditional code, in which women are considered ‘chattel’ and may be treated as such. According to numerous sources, these kind of traditional relationships have persisted in Albanian communities probably to a greater degree than in any other ethnic group in the Balkans. It is perhaps the uniqueness deriving from the Kanun that separates the Albanians from other Balkan peoples and simultaneously raises a number of questions regarding the astonishing success of the ethnic Albanian criminals, pimps and traffickers of women for sexual exploration.46

4. The Kanun and the Rise of the Albanian Sexual-Slavery Rackets 4.1. Trafficking of Women and Children for the Purpose of Sexual Exploitation In the last decade the ethnic Albanians have been massively involved in the trafficking of human beings, particularly women and children for sexual purposes.47 They have been actively involved in exploitation of prostitution, very often linked to slavery. Interviewed women and children have reported that all of them have experienced some kind of abuse, such as being regularly raped or beaten. Victims of trafficking are usually left as prey for their Albanian pimps, who strictly control all aspects of their lives. Those who do not comply are seriously harmed by their pimps. The Italian Ministry of Interior reported that 168 foreign prostitutes were killed in 2000, mainly Albanian and Nigerian women murdered by their pimps.48 It is important to understand why according to a recent internal British governmental briefing, ethnic Albanians now control more than 75% of the prostitution in London and other European cities? Concerted police raid on A. Baban, Domestic Violence against Women in Albania, UNICEF report (Tirana 2004). C.W. Lawson and D.K. Saltmarshe, ‘The Psychology of Economic Transformation: the Impact of the Market on Social Institutions, Status and Values in a Northern Albanian Village’ 23 Journal of Economic Psychology (2002) pp. 487–500. 47  The Definition Of Trafficking: The UN Convention On Transnationalcrime (The Palermo Convention) Adopted By The UN General Assembly On 15 November 2000: ‘Trafficking in persons means the recruitment, transportation, harbouring or receipt of persons either by threat or use of kidnapping, force, fraud, deception or coercion or by the giving or receiving of unlawful payments or benefits to achieve the consent of a person having control over another person for the purposes of sexual exploitation or forced labour’. 48  V. Hysi, ‘Organised Crime in Albania: The Ugly Side of Capitalism and Democracy’, in C. Fijnaut, et al., ed., Organised Crime in Europe – Concepts, Patterns and Control Policies in the EU and Beyond (The Netherlands 2005) pp. 537–562 (p. 546); IOM and ICMC, Research Report on Third Country National Trafficking Victims in Albania (Tirana 2002) p. 10. 45  46 

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Soho brothels revealed that around 80% of women working as prostitutes were from overseas, mostly from the Balkans and the Baltic states. It is estimated that approximately 70% of women working in these UK brothels are Albanians or Kosovo Albanians.49 According to the British National Criminal Intelligence Service, Albanian women are also being moved by Albanian criminals to red light areas in the north of England and the Midlands. Nearly a decade ago it was predicted that Russian organised crime would seek to exert influence over the British vice trade but instead it is the Albanian gangs who have taken control.50 A Home Office briefing, analysed by The Independent, stated that the ‘tightening grip’ of Albanian gangs on the vice trade was ‘changing the landscape’ of Britain’s sex industry. The Albanian ‘mafia’s’ establishment in Britain is of deep concern to law enforcement agencies, who have already been alarmed by the crime network’s growing presence in other parts of Europe. ‘Twelve months ago, Albanian organised crime was not an issue for the UK. Their infiltration has been very swift. The Albanians have inserted their girls into the existing infrastructure [of brothels] but the women are being controlled by organised criminals’.51 London is not the only European capital to have witnessed an astonishing rise in Albanian-run sexual-slavery rackets. A number of documents show that police in Rome, Milan, Frankfurt, Paris, Amsterdam, Athens and Stockholm have also reported an upsurge.52 Hence Albania has been reported to be a major source country for the trafficking of women. However, despite the figure of 30,000 which is often quoted as the number of Albanian prostitutes abroad, particularly until 1997 Albanian authorities were very reluctant to admit that many were victims of trafficking.53 Only recently did the Ministry of Public Order of Albania complete a significant study indicating that more than 5,000 Albanian women and girls were trafficked into prostitution in the last decade.54 The Albanian Council of Ministers set the figure of the actual victims of trafficking, i.e. Albanian women forced to prostitute 49  J. Bennetto, ‘Albanians “Taking over London Vice”’, The Independent (25 November 2002) Report by Britain’s National Criminal Intelligence Service ; also reported in The Economist (June 21, 2001) ‘Albanians Dominate Prostitution in Soho’; Paul Holmes; I. Cobain, ‘Albanians Take Over Organised Crime’, Times online (November 2002) . 50  J. Bennetto, loc. cit. 51  J. Bennetto, loc. cit.; also reported in The Economist (21 June 2001). 52  J. Bennetto, loc. cit.; I. Cobain, loc. cit.; also reported in The Economist (21 June 2001). 53  Save the Children, Child Trafficking in Albania (March, 2001), ; V. Hysi, ‘Organised Crime In Albania: The Ugly Side of Capitalism and Democracy’, in C. Fijnaut, et al., ed., Organised Crime in Europe – Concepts, Patterns and Control Policies in the EU and beyond (The Netherlands 2005) pp. 537–562 (p. 548). 54  UK Home Office, Albania Country Report 2004, Country Information and Policy Unit, Immigration and Nationality Directorate (April 2004).



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themselves abroad at 8,000. Nevertheless, according to the Italian press, there are almost 15,000 Albanian prostitutes in Italy and another 6,000 in Greece.55 Children (usually girls under 18) are also victims of Albanian traffickers. Albania has been identified again as a main source country for trafficking of children particularly after the fall of communism in 1991.56 The US State Department Report on Human Rights Practices 2002 notes that ‘trafficked Albanians increasingly fell into the 14 to 17-year-old age group; according to the AHRG, 25 percent of Albanian trafficking victims were minors. Italian census figures in 2000 showed that there were more than 900 children (girls age 14 to 18) who worked as prostitutes in Italy’.57 Italian authorities estimated that more than 8,000 Albanian girls are working as prostitutes in Italy, and more than 30% of them are under 18. These numbers were also emphasised by a number of participants at a 1998 seminar in Tirana, Albania on international traffic of women and children.58 According to data from Comitato Minori Stranieri of Italy, 9,047 Albanian children were reported to be unaccompanied between June 2000 and November 2001. This category of children living in foreign countries, are very often mistreated, sexually abused and involved in prostitution rings.59 Moreover, according to a report published by Save the Children in March 2001, village teachers in the Puke district in the north of Albania, have identified 87 females trafficked in the last three years, 80% of them children. Local sources claim that 2, 000 women from the Berat district are working as prostitutes abroad, 80% of them were children when they were trafficked. In a handful of villages in the Zadrima area, it is estimated that 30 women have been forced into prostitution; and there are countless other examples detailed in this report.60 In addition, the Centre for the Protection of Children’s Rights (CRCA) reported that ‘more than 2,000 [Albanian] children between the ages of 13 and 18 were involved in prostitution rings’.61 The U.S. State Department Report on Human Rights Practices, 2003, quoted, in a report prepared by the UK Home Office, states that, due to the poor economic V. Hysi, ‘Organised Crime In Albania: The Ugly Side of Capitalism and Democracy’, in C. Fijnaut, et al., ed., Organised Crime in Europe – Concepts, Patterns and Control Policies in the EU and beyond (The Netherlands 2005) pp. 537–562 (p. 548). 56  Save the Children, Child Trafficking in Albania (March 2001) p. 5. 57  UK Home Office, Albania Country Report 2004, Country Information and Policy Unit (April 2004); Noted also by S. Becucci (CIROC 2004). 58  G.J. Koja, ‘8000 Albanian Girls Work as Prostitutes in Italy’ HURINet – The Human Rights Information Network (25 July 1998) http://www.uri.edu/artsci/wms/hughes/italy.htm. 59  A. Maksutaj, Joint East West Research Project On Trafficking In Children For Sexual Purposes In Europe: The Sending Countries (January 2004) . 60  Save the Children, Child Trafficking in Albania (March, 2001). 61  The Children’s Human Rights Centre of Albania – CRCA . 55 

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situation, men and women from organised criminal groups lured women and girls from all over the country by promising them jobs in Italy and Greece. Some men, primarily in the north of the country, also married women and girls under false pretences and took them abroad as prostitutes. Other forms of recruitment included promises of marriage, and to a lesser extent, the selling of victims to traffickers by family members, or kidnapping, including from orphanages.62 Yet trafficked children have often been bought from families and in a few cases kidnapped. According to sources, in some parts of Albania, there’s hardly a village that remains untouched. Although the terrible economic situation in Albania is a very important contributing factor, it is not the only factor influencing the success of the Albanian violent criminal businesses. The International Helsinki Federation for Human Rights and Human Rights Watch reported in 2003 that ‘because of its geographical location, Albania continues to be a major country of origin, transit and destination for the trafficking of women and children for the purposes of sexual exploitation’.63 Besides the economic and demographic factors, I would like to single out the Kanun laws and the traditional role of Albanian women as a possible socio-cultural factor responsible for the astounding rise of the Albanian sexual-slavery rackets. 4.2. The Kanun and the Victim-Offender Relations What then can the Kanun tell us about the massive involvement of ethnic Albanians (as victims and criminals) in the trafficking of women (including girls) for sexual exploitation? How does the Kanun define the relationship between the male traffickers and their female victims? Are there feelings of guilt and responsibility? What is the role of the Albanian family in promoting prostitution and trafficking of women and children? How do family values vary across social and cultural space? Captivatingly, official sources are frequently pointing out that trafficked women are often relatives of violent and cruel Albanian pimps, or that at least they come from the same locality. Together with fellow countrymen, brothers, cousins, uncles and nephews they participate, in the exploitation through prostitution.64 Stefano Beccuci, Professor at Florence University in Italy explains that the recruitment strategies are based mainly on a sentimental relationship between exploiter and victim and that they are particularly widespread in the ambit of Albanian prostitution. He argues that the Albanian women have UK Home Office, op. cit. Human Rights Watch, Albania: Human Rights Developments, World Report 2003, . 64  S. Becucci (CIROC 2004); International Crisis Group Report (2000). 62  63 



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enormous difficulties freeing themselves from the prostitution circuit because they are sentimentally bonded to the exploiter. Although they are subjected to brutal physical and psychological violence on a daily basis, the sentimental relationship stops the girls from denouncing their pimps. According to Beccuci, an additional impediment are the continual threats of retaliation towards family members back in Albania if the women do not obey their exploiters. Then threats are particularly credible and efficient when considering that in many cases the victim and the exploiter come from the same locality in Albania.65 Available reports also show that Albanian families are themselves implicated in the induction of their daughters into prostitution. On the condition that prostitution does not become common knowledge, it is sometimes their own parents who convince daughters to follow boy-friends, cousins or acquaintances, in full knowledge that they will be forced into prostitution.66 The UK Home Office also reports that ‘in some cases, women are simply being returned to family members who trafficked them in the first place, or to the very same situation from which they were trafficked. This often simply leads to the re-trafficking of these women’.67 In addition to this argument, the U.S. State Department Report of 2003, quoted by the UK Home Office adds that the victims of trafficking often faced significant stigmatisation from their families and society.68 At this point I would like to hypothesise that it is possible that the social habitat of a Western thinker determines a completely different system of values than those of the Albanian thinker. The notions of honour and family might also differ considerably in the two settings. As a result, the perception of the woman in traditional Albanian society perhaps sets up a different set of values and patterns of behaviour than the perception of the Western woman in a Western European context. If in Western Europe the statement ‘all women are equal to men’ might be perceived as unquestionably true, the question that one might ask is whether this statement has the same validity in an ethnic Albanian context? Is it possible to postulate that, as a result of the Albanian moral-legal code, the Kanun, certain segments of the population (particularly males from north of the Albania) do not value and respect women; therefore, in their eyes trafficking, raping and beating women is not an intentional violation of a prohibition? Is it possible that it is not only the sentimental relation and fear that stops women from denouncing their exploiters, but also their submissive roles that sees the exploitation as a culturally acceptable phenomenon? S. Becucci, referring to Tribunale Milano (1999) p. 811; Tribunale Genova (2001) pp. 50–51. S. Becucci, referring to Tribunale Genova (2001) p. 354. 67  The International Catholic Migration Commission, Protection of Trafficked Women Programme 1999–2001. 68  UK Home Office. op. cit.; also noted by M. Hajdinjak, The Center for the Study of Democracy (Bulgaria, 2002). 65  66 

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According to Ardian Visha the sources pointing out that Albanians traffic their own family members for sexual exploitation is far from actual reality. He states that because of the code of honour and the patriarchal society, families will never allow their own women to be exploited for sexual purposes. He claims that women are respected in the Albanian society. Visha postulates that because a lot of pimps and traffickers are Albanians, people assume that the women working for them are also Albanian. He explains that sometimes the trafficked women do not want to go back to their countries, so they claim that they are from Albania. In Albania you will not find even a single Albanian prostitute. She will be killed by her own family if she becomes a prostitute. Albania is still a patriarchal country and the women would never dare to prostitute themselves. Nor family members will ever send their children to prostitution. The women that Albanian pimps traffic are from Romania, Moldova and other countries, not Albania. There are no more then 3000 Albanian prostitutes in the world, not a big number compared to other nationals.69

Considering the opposite argument, a few questions immediately come to mind: (a) Is it likely that the numerous reports pointing to the blood relationship between trafficked Albanian women and the Albanian pimps are simply misleading and untrue? (b) Could it be true that as a result of the code of honour Albanian women are highly respected in their society? (c) Is it probable that the statistical data is true, but the Albanian government representatives avoid associating their culture with such violent and disgraceful behaviour since it does not give a positive impression about Albania? or (d) Is it simply possible that the Albanian law enforcement agencies are not well informed about the real situation since one of the conditions for Albanian women to prostitute themselves is that the prostitution does not become common knowledge? It is my belief that the answers to all of the above questions can be found in the Kanun. First of all, I have very little doubt about the correctness of the numerous international reports on the trafficking of women for sexual exploitation. If one analyses the perception of women in Albanian society by some segments of the Albanian population one could hardly agree with Visha’s argument that women are highly respected in the society. On the contrary, the ‘aggressive and disrespectful’ attitude towards Albanian women can be traced back to the above-mentioned Kanun laws and it can be understood in the context of a traditionally male-dominated Albanian society in which a certain degree of violence against women is culturally acceptable. Therefore, although women are ‘supposedly honoured’ in the Albanian society, their honour has existed through 69  A. Visha, Director of Foreign Affairs, Prosecutors Office, Tirana, Albania. Conference on Albanian OC-CIROC (The Netherlands, June 2004).



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and has been ‘defended’ by men. Various NGO’s and international organisations working on these issues incessantly confirm this point. This analysis leads me to the following questions: is it possible that Albanian authorities avoid linking the problem of the trafficking of women with their culture, or are they simply not informed about the actual activities on the ground? According to my research findings, the answer to both questions is yes. Some Albanian authorities and parts of the Albanian intelligencia often, consciously or unconsciously, avoid acknowledging the negative impact of the Kanun. The conscious denial relates to the positive image of Albania and the Albanian people in international circles. The Western system has unintentionally implied that the Albanian people should not be [presented as] ‘primitive’ and violent if Albania wants to move forward. As a result, instead of dealing effectively with the ‘negative’ influences of the Kanun, Albanians often tend to deny or suppress the problem. However, there is also an unconscious element relating to the social habitat of the Albanian people. This goes back to the sociology of knowledge, according to which the social habitat of the thinker determines the system of theories which emerge as unquestionably true to him or her. You cannot criticise or acknowledge a problem if you do not realise that the problem exists, or if you are part of that problem. For example, although in December 2001 the Albanian Parliament adopted an anti-trafficking strategy and set up a special anti-trafficking police unit, sources show that the Ministry of Public Order failed to follow up on high-profile trafficking and corruption investigations. Local police often tipped off traffickers when raids were scheduled. On one occasion, a police supervisor checking on his men found them helping traffickers with their boats.70

Much of the success of organised crime groups in the Balkan region has in fact resulted from the large number of willing partners within the government and the police. The police in Albania were often involved directly or indirectly in trafficking. A few police officers, and other government officials, were prosecuted for trafficking during the year. Lawyers and judges were also manipulated and bribed, permitting traffickers to buy their way out of punishment if arrested.71

In addition, during 2003 the Office of Internal Control investigated the involvement of the police in trafficking. Many of the investigations led to suspensions or dismissals. Also, a growing number of police officials had to face prosecution in the same year. In April 2003, the local head of SHISH (Internal Security Services) 70  71 

UK Home Office, op. cit. UK Home Office, op. cit., reference to the US SDR 2003 report.

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in Durres was arrested for his part in a child trafficking ring.72 Therefore, this ‘natural’ criminal collaboration has been allowing the smooth development of the criminal activities of Albanian organised crime groups.73 Sources show that even the very few prostitutes ready to come forward and bear witness against their exploiters had been deported before the prosecution managed to set up the case while the pimps and ringleaders remained virtually immune. With regards to the last question, for thousands of years, in the eyes of many Albanians, the State represented the outsider and the intruder.74 The Kanun traditionally taught the people to deal with problems themselves, without resorting to the help of the state. ‘We can’t go to the police. It’s not our way of dealing with it’.75 For many years the Kanun had been used to compensate for a weak and corrupt judicial system, as well as the fact that for too long now it has become the accepted tenet that northern Albania is beyond the rule of law, that the government has no jurisdiction in the north, and so the north must rely on its own customary law to provide justice for its citizens.76

Consequentially, such reasoning, particularly from northerners, resulted in a lax police response with most abuse and violence against women, particularly spousal violence, going unreported.77 The lack of reliable data can be also related to the fact that the families of victims, as well as the victims themselves, are afraid to report traffickers because that might result in revenge killings. Ruth Hopkins, an independent researcher from the Netherlands, explains that the women themselves would never tell anything about the traffickers since the organised crime groups use the fear, respect and moral justification associated with the Kanun to terrorise them into a code of a silence.78 Yet it is not only fear that stops women reporting traffickers. Many women still view their social position under the framework of customary laws and that is why there are no official convictions against traffickers and abusers. Although their position in the family can shift according to class and age, most women are expected to serve their families, bear children and preserve Albanian cultural traditions. Cultural attitudes toward male honour serve in many ways to justify violence against women and to exacerbate its consequences. In other words, very often these kinds of action are not even perceived as real violence and a UK Home Office, op. cit. M. Hajdinjak, Smuggling In Southeast Europe: The Yugoslav Wars and the Development of Regional Criminal Networks in the Balkans, Center for the Study of Democracy (Bulgaria, 2002) p. 44, . 74  P. Qesku, op. cit. 75  M. Mortimer, A.Toader, loc. cit. 76  UK Home Office, op. cit., reference to the Albanian Helsinki Committee. 77  UK Home Office, op. cit. 78  R. Hopkins, Conference on the Albanian OC, Center for Information and Research on Organized Crime CIROC (The Netherlands, June 2004). 72 

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criminal act since the very basis for the criminal action can be found in the Albanian culture. A culture that teaches male mastery and domination over women does encourage violence, but what happens when such behaviour is not seen as violent by both parties?79 Unfortunately, many women have accepted their traditional roles and they perceive ‘violence’ towards them as morally justifiable since it is a ‘man’s duty.’ Therefore, the lack of witnesses and actual prosecutions of ethnic Albanian criminals is a result not only of the fear of ‘ultra violent’ organised crime groups and the distrust in the corrupted criminal justice system, but also because of traditionally ‘passive’ ethnic Albanian women and their families who very often justify Albanian traffickers and decide to remain silent. Going back to the argument of Ardian Visha that in Albania one will not be able to find even a single Albanian prostitute, I am willing to support his statement but for completely different reasons. Albania is a poor, traditional country where the sex industry is not as developed as in Western Europe. It is much more profitable for the traffickers to exploit the women in Western Europe than to keep them for the Albanian market. Also, it is more ‘morally’ acceptable for certain families to send their female children as prostitutes to Western Europe than to allow them to prostitute themselves in Albania, since there is a lesser possibility that the prostitution will become a common knowledge in their community. Nevertheless, according to recent reports from the International Organisation for Migartion (IOM) there appears to be a growing internal prostitution market and more and more local women are engaged in prostitution, replacing the former trend for foreign women to be sexually exploited in Albania on their way to Western Europe.80 In any case, the ‘twisted’ ‘Kanun-like’ reasoning should not convince the Albanian authorities that Albania does not have a problem with prostitution, or domestic violence, where women, no matter from which nationality, remain the main victims.

5. Conclusions, Initiatives and Recommendations It the light of the previous discussion, it is difficult to ignore the possible link between the ethnic Albanian legal code, the Kanun of Lek Dukagjini and the flourishing of the Albanian sexual slavery rackets. It seems that in certain ways the ancient laws do influence the ethnic Albanian perception of right and wrong in their own cultural and social space. This cultural influence can ‘shape’ the behaviour of the ethnic Albanian in a slightly different way than the behaviour of a Western European. As Popper explained, the behaviour and perceptions of 79  A. Baban, Domestic Violence against Women in Albania, UNICEF Report (Tirana 2004) . 80  UNDP, Trafficking of Human Beings in South Eastern Europe (March 2005).

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two individuals from different social habitats can vary greatly, to the extent that no intellectual bridge may exist between them. Thus, in terms of understanding criminals and violent acts, we should always raise the questions about how much explanation should be sought within the individual and how much is it the product of their culture. The cultural context is also highly relevant for assessing the level of guilt and responsibility the criminal feels when ‘violating’ a prohibition. One of the famous Wolfgang’s corollaries states that the use of violence in a (sub) culture of violence is not necessarily viewed as illicit conduct and the users therefore do not have to deal with feelings of guilt about their aggression.81 This aspect is in need of further analysis in relation to ethnic Albanian cultural context and the influence of the Kanun. One of the problems with the Kanun, as well as with the trafficking phenomena, is the public acknowledgment of its hazardous existence, particularly by the intelligencia and the political elites. It is a serious issue that many people in positions of authority, until very recently, refused to talk about the Kanun and its effects simply because it does not reflect positively upon Albania. A similar situation existed with the massive Albanian involvement in the trafficking of human beings for sexual exploitation. However, after the warning from the European Union that failure to effectively address problems such as domestic violence, trafficking of women and children and blood feuds might pose a barrier to a possible future EU integration. In June 2003 the Albanian government held a round table conference. The aim was to focus on an action plan to deal with this ancient phenomenon. It has been pointed out that such government moves were strongly backed by the former Albanian President Alfred Moisiu. President Moisiu’s address to the Albanian Assembly of 5 October 2003, postulated that the ‘growing tendency towards family crime and the increased number of victims in the name of the Kanun is a blow to the state’.82 Following this presidential announcement, Albania’s Serious Crime Court was established on 1 January 2004. This court provides a parallel structure to the ordinary court system and will specifically deal with criminal offences carrying a minimum sentence of 10 years. A UK Home Office report states that on 7 January, President Moisiu appointed 12 prosecutors who will target what are considered to be more serious crimes, including organised crime, human and drug trafficking and blood feuds.83 Moreover, the newly elected Albanian president, Sali Berisha, publicly announced that the new government is going to take extraordinary measures to improve the legal justice system in Albania and fight organised crime and 81  M.E. Wolfgang, F. Ferracuti, The Subculture of Violence: Towards an Integrated Theory in Criminology, Tavistock Publications (London, 1967) pp. 155–156. 82  UK Home Office, op. cit. 83  UK Home Office, op. cit.



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corruption. This was the slogan that helped Berisha win the elections in 2005. Moreover, on 8 September 2005, Norway, Slovenia, Switzerland and the United Kingdom on one side and Albania, Bosnia and Herzegovina, Croatia, Moldova, Montenegro, Romania, Serbia, Macedonia and UMNIK/Kosovo on the other, agreed to cooperate and network their activities to fight organised crime. These countries set up the Organised Crime Training Network (OCTN), which has been established in line with the conclusion of the 2002 London conference on defeating organised crime in SEE.84 Moreover, the crime of trafficking in human beings has been only recently included in the Albanian criminal code (art. 110/a CC).85 The Albanian criminal code includes special provisions on the trafficking of women for prostitution and the trafficking of children (art. 114/b and 128/b); however, these definitions appear to be vague, as the only specific requirement is the purpose of profit. In a recent Council of Europe’s report these definitions are criticised because ‘it is impossible to make a clear distinction between trafficking in human beings and facilitation of illegal border crossing’.86 According to experts it would thus be necessary to amend the Albanian criminal code to bring it more into line with the definition envisaged by the UN Protocol on Trafficking. Finally, as one of the 185 countries participating in the United Nations Fourth World Conference on Women in Beijing, China, Albania committed itself to eliminating violence against women and to promoting and protecting women’s human rights. The Beijing Platform for Action adopted at the Conference recognises that violence against women is a violation of human rights and suggests strategies for eliminating this violence.87 Both the 1993 UN Declaration on the Elimination of Violence Against Women and the Beijing Platform for Action

84  Stability Pact Press Release, ‘Training Network Set to Tackle Fight against Organised Crime’ (8 September 2005), . 85  Art. 110/a (Trafficking in human beings): 1. Trafficking of human beings with the purpose of material profit or any other profit is punishable by five to fifteen years of imprisonment.2. The same offence, if committed in collusion with others or repeatedly, or if accompanied with maltreatment and compulsion by [exercising] physical or psychological pressure against the victim [to have them] perform different actions, or if it [the offence] causes serious consequences to health, is punishable by not less than fifteen years of imprisonment and, if it causes death, by life imprisonment. 86  M. Giammarinaro, Opinion and Commentary on the Legal Provisions on Trafficking in Human Beings Applicable in Albania, LARA Project – Criminal Law Reform Against Trafficking in Human Beings (March 2003) p. 3, available at the Council of Europe website (last verified on 18 February 2004). 87  Beijing Platform for Action, U.N.Doc. A/Conf.177/20 (1995). The Platform states, ‘Violence against women both violates and impairs or nullifies the enjoyment by women of their human rights and fundamental freedoms.’ Para. 113.

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encourage governments and NGOs to eliminate violence and to promote research and studies on the nature and causes of violence against women.88 However, according to my observations, a top-down approach aiming to change a more than six-century-old culture is an insufficient method to deal with the phenomena of ‘violence’, blood feuds and various forms of organised crime. Albania should start working on the development of its civil society, as well as the development of a democratic culture which presently ‘is hindered by a lack of a sense of personal responsibility and accountability’.89 As Elez Biberaj explains, this widespread apathy and a deeply rooted expectation that others – a new government or foreigners – would simply step in and solve the country’s problems is a serious problem for Albania. To some extent, the Kanun and the present political environment discourage Albanians from taking the initiative to work out a direct cause and effect approach to responsibility.90 However, although on many occasions I have emphasised the ignorance of the Albanian people regarding the problems associated with the Kanun, I have to also stress that there are many ethnic Albanians that do acknowledge these problems and try hard to make changes. There are also a number of active NGOs that work actively with victims of trafficking, victims of domestic violence, victims of rape and other abuses, as well as with families in feuds. All these joint efforts aim at promoting individual responsibility and changing ‘old habits’ in Albania. In fact some changes promoting individual responsibility have already begun to take place. One such example is the recent modernisation of the ancient Kanun laws in Kosovo and Albania for the purpose of reducing the number of men killed or forced into hiding by blood feuds and vendettas. The most powerful families from the north of Albania decided to enact new rules. In April 2005, about 5,000 people met at a clan gathering where they decided that in a case of murder only the actual killer, rather than his extended family, can be targeted in a blood feud.91 Although not directly connected to the role of women in Albanian society, this is a very important step in acknowledging and modifying these ancient creeds. It is my belief that the international community should involve the Albanian civil society (particularly people who do recognise and understand cultural

88  G.A. Res. 48/104 (1993); Beijing Platform for Action, U.N.Doc. A/Conf.177/20 (1995). Domestic violence can be defined as the use of force or threats of force by a husband or boyfriend for the purpose of coercing and intimidating a woman into submission. The violence can take the form of pushing, hitting, choking, slapping, kicking, burning or stabbing. 89  E. Biberaj, ‘Albania’, in Zoltan Barany and Ivan Volgyes, eds., The Legacies of Communism in Eastern Europe (Baltimore, 1995) p. 253. 90  E. Biberaj, op. cit. p. 253. 91  C. Châtelot, ‘En Albanie, des grandes familles tentent de “moderniser” la vendetta’, Le Monde (24 April 2005), .



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‘problems’ from personal experiences) and should appreciate their opinions when creating policies that affect the region in numerous ways. The Third International Commission of the Balkans recently reported that today ‘the region is as close to failure as it is to success’.92 This might be, again, a result of the lack of public participation in political affairs. Despite large financial investment many politicians’ acts have not left any fundamental positive imprints on the lives of these local people who are in a need of a change, but they firstly need to truly understand why a change is necessary. Additional efforts and an urgent shift in international, Brussels and local thinking are urgently required in order to solve such outstanding issues and accelerate the transition process.93 Moreover, ORT’s nation-wide survey on the Kanun from late 1997 found that the Kanun must be built into the legal structure of the country if modern laws are to be effectual. Although this might sound like an avant-garde proposal, it could be considered a transitional step during the early period of a legal reform. If these ancient rules, considered by many Albanians to be the ruling law in Albania, cannot be curtailed, then they might continue to undermine the implementation and enforcement of Albanian law. In order to move forward with the overall democratic development for Albanians, especially in districts strongly influenced by the Kanun, ORT claims that alternatives focusing on social and legal development with elements of the Kanun remaining must be considered. It could be devastating for the future of Albania to continue ignoring the impact of the Kanun.94 Furthermore, ‘positive’ examples from influential people considered ‘heroes’ in their surroundings might also bring some success in the fight against the so-called ‘culture of violence’. The Kanun itself assigns leadership roles only to dominant and powerful males; it might be that those males are the only ‘legitimate’ people able to overthrown the supremacy of the Kanun. In April 2004, Ramush Haradinaj, the former prime minister of Kosovo, who had pleaded not guilty to war crimes charges at the UN tribunal in The Hague, was allowed to go home to Kosovo to attend the funeral of his youngest brother Enver. Enver had been murdered in a machine-gun attack in western Kosovo.95 Under the dictates of the Kanun, the Haradinaj family is now ‘in blood’ with the killer, no matter who he might be. Will the prime minister set an example for his nation and ignore the rules of the Kanun, or is the power of the ancient laws indeed so deeply integrated into society that it reflects his nature and that Third International Commission on the Balkans, The Balkans in Europe Future (April 2005) p. 7 Third International Commission on the Balkans, op. cit., p. 3. 94  L. Jenkins, principal researcher, Albania’s Road to Democracy: A Fascinating Country in Transition, ORT/USAID Democracy Network Program (Tirana, Albania, July 1998) p. 208. 95  News room. ‘Enver Haradinaj’s Funeral’ (Pristina, 17 April 2005), . 92 

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of his people? But changes should not only relate to blood feuds and revenge killings associated with the Kanun. They should also target the theoretical and the actual emancipation of ethnic Albanian women.

Part II Criminal Law

1. The Division of Criminal Law Power in the European Union

The Influence of European Community Law on the Criminal Law of the Member States Roger France 1 Member of the Brussels Bar, Belgium

1. Introduction The relation between Community law and the criminal laws of the Member States has al­ways been particularly problematic.2 This difficulty of adaptation arises principally from the presumed lack of criminal competence in the hands of the Community legislature, such com­petence being not expressly created by the Treaties. Nevertheless, it is now becoming obvious that the ‘incoming tide’ which is Community law, has overflowed into criminal legislation just as it has inundated civil or commercial law. But, unlike these latter, criminal law has been influenced indirectly, through the interpreta­tion of principles which do not have a particular penal nature. This interpretation is mainly the work of the Court of Justice of the European Communities (hereafter ECJ) which held that it has jurisdiction under Article 177 EEC whatever the branch of law involved in the na­tional proceedings before the referring court, and that ‘the efficacity of Community law can­not vary according to the various branches of the national law in which it may take effect’. Indeed, the precedence of Community law, provided that it is directly applicable, operates in a ‘comprehensive manner’. If it were to be decided otherwise and criminal law was to be ex­cluded, it would easily be possible to restrict the scope of application of Community law by ‘clothing certain categories of law in the 1  The very valuable help of Dr. A.T.H. Smith, Gonville and Caius College, University of Cambridge and of Mr. S. Lynch is most gratefully acknowledged. The author is solely responsible for any remaining errors. 2  On the relation between Community law and criminal law, see in particular J. “Dine, ‘European Community Criminal Law?’, Criminal Law Review (1993) p. 246; H. Sevenster, ‘Criminal Law and EC Law’, Common Market Law Review (1992) p. 29; J. Schutte, ‘The European Market of 1993: Test for a Regional Model of Supranational Criminal Justice or of Interregional Cooperation in Criminal Law’, Criminal Law Forum (1991) p. 55; M. Delmas-Marty, Droit pénal des affaires (Paris 1990) vol. I, pp. 29–40 and D. Howarth, ‘1992 and the Criminal Law’, Journal of Criminal Law (1989) p. 358.

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garb of criminal law’.3 The underlying idea is that this is incompatible with the concept of the Common Market and the uniform application of provisions of Community law. Thus, the very principle of supremacy of Community law over conflicting rules of national law applies equally in criminal cases as in civil cases, if necessary by making invalid the incompatible domestic criminal provisions. These effects of Community law on domestic criminal laws can be divided in two opposing categories. Firstly, Community law tends to decriminalize some elements of national criminal law, that is it limits domestic criminal provisions by invalidating incompatible inter­nal provisions. Secondly, Community law reinforces the criminal systems, since it extends national criminal laws by generating new criminal offences and penalties. Although these processes are not always visible, they nevertheless contribute to the subordination of national criminal law and place it within the broader legal framework of the Community. This situ­ation needs to be recognised and the competence of the Community in the area of criminal law reconsidered. The aim of this study is precisely to investigate these influences and to examine if, conse­quently, there are sufficient grounds to speak of a Community competence in the area of criminal law.

2. Limitations of the National Criminal Law Community law has a twofold limiting effect on national criminal laws.4 On the one hand, where a domestic rule of criminal indictment is incompatible with Community law, the legal basis for the offence is invalidated, whether or not the creation of the national offence pre­dated the relevant Community provision. On the other hand, domestic penalties (or rules of criminal procedure) must be abrogated or tempered in cases where they contravene the general principles of law which the ECJ uses to interpret Community law. 2.1. With Regard to the Definition of Criminal Offences The most obvious influence of Community law on the internal rule defining an offence mani­fests itself in a situation where the domestic rule of criminal indictment, juged incompatible with Community law, is invalidated, with the effect that no offence has been committed. However, the most frequent influence of Community law is to affect some aspects of the in­ternal requirements for criminal responsibility (Mens rea – Actus reus). This ultimately amends the content of the offence. 3  See the opinion of the advocate-general K. Roemer in case 82171, SAIL, Reports of Cases before the Court (hereafter: ECR) (1971) p. 119. 4  See the opinion of the advocate-general M. Darmon in case 299/86, Drexl, ECR (1988) p. 1213.



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2.1.1. Incompatibility between Community Law and the National Definition of a Criminal Offence Incompatibility has been established in different circumstances depending upon the status of the Community provisions involved. Each of these provisions will be examined in turn. a. It is well known that certain provisions in the EEC Treaty are of direct effect and can be relied upon by individuals in action before the courts of the Member States,5 even in cases involving criminal law. In this regard, national rules defining an offence have been mainly invalidated on the basis of Article 30 and 34 EEC which prohibit quantitative restrictions on the import of goods between Member States as well as ‘measures having equivalent ef­fect’. When,in the eyes of the Court, a criminal indictment is considered to constitute a measure having an effect equivalent to a quantitative restriction, it has to be set aside,6 un­less it falls within the scope of Article 36 EEC which allows Members States to impose restrictions on the import or export of goods if they are ‘justified on grounds of public morality, public policy or public security’. The rather vague terminology of this exception is of the nature to give some margin of discretion to the Member States. The compatibility of a criminal provision with Community law could therefore depend on whether it falls within the scope of exceptions provided by Article 36 EEC.7 Nevertheless, in several cases, Article 36 EEC has been rejected by the ECJ and definitions of offences in various fields of criminal law have been set aside. For instance, in connection with smuggling, in Redmond,8 a Northern Irish regulation prohibited the transport of bacon pigs except to well-defined purchasing centres, in which case the producer had to be in possession of a document authorising such transport. Tres­passers were criminally prosecuted. The defendant, who had been unable to produce such authorization, claimed that this regulation was incompatible with Community law. The ECJ ruled that the Northern Irish regulation was contrary to the 5  Case 26/6, Van Gend en Loos, Common Market Law Reports (CMLR) (1963) p. 105. For a provision in the Treaty to have direct effect, it must be clear and unambiguous, unconditional and not dependent on further action by the Community or national authorities. 6  For a definition of ‘measures having equivalent effect’, see case 8174, Dassonville, ECR (1974) p. 837. 7  For rejected attempts to declare a criminal provision incompatible with Community law on the basis of Article 36 EEC, see e.g. case 7/78, Thompson, ECR (1978) p. 2247; case 220/81, Robertson, ECR (1982) p. 2349 and the joined cases 141 to 143/86, Holdijk, Mulder and Alpuro, ECR (1982) p. 1299. 8  Case 83/78, ECR (1978) p. 2347. See the influences of this judgment on the national judge in M. Robinson, ‘How EEC Law Affects Practitioners (Part V)’ Gazette of Incorporated Law Society of Ireland (1985) p. 161.

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relevant Community pro­visions, especially Article 30 and 34 EEC (because it was a measure having an effect equivalent to a quantitative restriction on exports) and that these provisions were directly applicable. Consequently, the legislation in question was of no legal effect. Relating to smuggling of pornographic articles,9 the ECJ held in Henn and Darby10 that a ban to im­port pornographic materials into the United Kingdom could be authorised on basis of the exception of ‘public morality’ provided by Article 36 EEC only insofar as they are con­sidered obscene by the standards of domestic law. This principle was applied in Cone­gate,11 with the effect that German inflatable dolls of an erotic nature could not be subject to an import ban in the United Kingdom where no provision prohibited their manufacture. Similarly, with aspects to criminal offences under legislation passed in order to create technical standards, the Court has on several occasions considered various national provi­sions establishing such standards to be hidden protectionist measures. For instance, in Prantl,12 the ECJ held that it was contrary to Article 30 EEC to prosecute an importer of Italian wines on the basis of a German regulation reserving specific bottle shapes to wine produced in their Franconic region and prohibiting the import of Italian wines in similar bottles. Other examples are found in a number of cases, many of them French, relating to criminal offences under the alcoholic beverages-legislation that prohibits or restricts the advertising of certain alcoholic products.13 The most important judgment was handed down by the ECJ in the case Commission v. Republique Française14 when it stated that the relevant French rules were contrary to Article 30 EEC in that they possessed undeniably discriminatory features. Referring to this decision, the French Cour de Cassation recog­nised the principle of invalidity of the relevant criminal provisions insofar as they intro­duced such discrimination into the trade of alcoholic beverages. The position of the ECJ with respect to this commodity has also been confirmed in other cases involving criminal proceedings brought under Dutch and Italian legislation, namely the Andres15 and Fietje16 cases.

Gravells, ‘Pornography and the Free Movement of Goods’, European Law Review (1978) p. 442. Case 34/79, ECR (1979) p. 3795; see also ‘European Law’, Criminal Law Review (1977) p. 743. 11  Case 121/85, ECR (1986) p. 1007. 12  Case 16/83, ECR (1984) p. 1299. 13  For extensive comments concerning the French view on the different solutions which have been applied by the ECJ: see J. Biancarelli and D. Maidani, ‘L’incidence du droit communautaire sur le droit pénal des Etats membres’, Revue de Science Criminelle (1984) p. 225. 14  Case 152/78, ECR (1980) p. 2299. 15  Case 788/7, ECR(1980) p. 2071. 16  Case 27/80, ECR (1980) p. 3839. 9 

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Criminal offences under legislation passed in order to conserve fish stock have been limited by Articles 5 and 7 EEC rather than by Article 30–36 EEC. In Schoenberg,17 the ECJ held that the relevant Irish conservation measures discriminated indirectly in favour of Irish boats and were therefore contrary to Community law. The Court then added that ‘where criminal proceedings are brought by virtue of a national legislative measure which is held to be contrary to Community law, a conviction in those proceedings is also incom­patible with that law’. The result was that the Irish Court was bound to disregard the na­tional provisions and drop the charges. This was confirmed in Tymen18 where the ECJ stated that the enforcement, by criminal proceedings, of invalid English legislation passed in order to conserve the resources of the sea was contrary to Community law and there­fore invalid. Lastly, the case law of the ECJ could also affect the offence of copyright infringement. Indeed, the ECJ provided in Tournier19 the strongest possible indication to French na­tional Courts that they should find the SACEM (French copyright management society) in breach of Article 86 EEC (abuse of a dominant position) because it charged excessively high royalty rates. Consequently, the question arises whether the breach of copyright could be committed, since evidence for the offence is based on failure to pay the full amount of royalties charged. b. Regulations comprise a second category of provisions. Article 189 EEC states that they shall be binding in their entirety and be directly applicable in all the Member States. In some cases, their provisions are so specific as to make them a direct source of law and give a defence to a criminal charge under a national statute in instances where the two conflict. Like the EEC Treaty Articles, the definition of the criminal offence can be set aside because of its incompatibility with a Community rule. It should be noted however that this incompatibility appears immediately without any interpretation of the rule due to the existence of a Regulation transferring a specific competence to the Community auth­orities. This point has been illustrated in some cases involving British criminal provisions. For instance, in Concorde Express,20 the Crown Court declared that Regulation 1463/70 abolished the obligations for drivers relating to the Case 88/77, ECR (1978) p. 473; see also case 61/77, Commission v. Ireland, ECR (1978) p. 417. Case 269/80, ECR (1981) p. 3079. See also case 251-252/90, Cowie. CMLR (1992) p. 493. 19  Case 395/87, ECR (1989) p. 2521; M. Delmas-Marty, Droit pénal des affaires (Paris 1990) pp. 29–40. 20  CMLR (1980) p. 221. See also case 128/78 (‘Tachographs case’), Commission v. United Kingdom, ECR (1979) p. 419 and, for an example of this principle in operation, case 116/91, British Gas, CMLR (1992) p. 65. 17  18 

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individual control books, which were maintained in force by the British criminal legislation, and replaced it by the introduction of tachographs. The Court considered that ‘where there is a conflict between a rule of Eu­ ropean law and some provisions of national law, the former must prevail’, and struck out the charges. Similarly, the ECJ declared in Kirk21 that the Sea Fish Order 1982 was in any case superseded by Regulation 170/83 and was consequently incompatible with Com­munity law such that any criminal fines levied on basis of its authority were invalid. c. Directives form the third category. If a Directive is ‘unconditional’, ‘sufficiently clear and precise’ and the date on which it was due to have been implemented has passed, it will have a direct effect on the rights of individuals whether or not the Member State has im­plemented the Directive in question. Consequently, provided that the above conditions are met, an individual accused of a criminal offence incompatible with a Directive can invoke this latter in order to invalidate the charge. This was first outlined by the ECJ in Ratti 22 where criminal proceedings had been in­stituted against an Italian manufacturer of varnish, who had adapted his labels to Direc­tives which were not introduced in due time in the Italian legislation, and thus created a breach of the old domestic law still in force. The ECJ held that ‘after the expiration of the period fixed for the implementation of a Directive, a Member State may not apply its in­ternal law – even if it is provided with penal sanctions – which has not yet been adapted in compliance with the Directive, to a person who has complied with the requirements of the Directive (if these requirements are unconditional and sufficiently precise)’. This prin­ciple has been confirmed in other criminal cases involving the non-introduction in Italian and French legislation23 of Directives relating to the practice of veterinary surgery. This was then extended by the ECJ in Rienks,24 which affirmed, without any distinction be­tween Directives and other Community legal instruments,25 that ‘a Member State may not enforce a penal measure where such (enforcement) is contrary to Community law’. Of course, if the time limit for implementation has not yet expired, criminal prosecu­tions cannot be regarded as contrary to Community law. But the Directive might never­theless be taken into account by the national

Case 63/83, ECR (1984) p. 2689. See also case 5/79, Denkavit, ECR (1979) p. 3203. Case 148/78, ECR (1979) p. 1629. 23  Case 271/82, Auer, ECR (1983) p. 2727. 24  Case 5/83, ECR (1983) p. 4233. 25  P.F. Ryziger, ‘Rapports entre le droit pénal français et le droit communautaire’, I Gazette du Palais (1986) p. 219. 21  22 



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judge to the extent of constituting a ‘mitigating factor’, and a lesser sentence than would normally be the case may result.26 When a Directive requires a Member State to alter its law, this latter has discretionary powers to do so, in the limits established by the ECJ and those of the relevant Directive. The impact of this limited power on criminal cases has been illustrated in two decisions relating to Directive 64/54 on foodstuff additives. In both cases, criminal proceedings were instituted on the ground that the use of some additives were prohibited. In Grunert,27 it was stated that a total ban on the additives in question was contrary to the Directive, with the effect that its provisions, which were found directly applicable, could be relied on as a defense against criminal prosecution. But the ECJ held in Kugelmann 28 that because the Member State had not totally prohibited the relevant additives, its regulation was within its discretion under the Directive and consequently the criminal sanctions could be enforced. Lastly, it results from the cases Pretore di Salo v. X and Kolpinghuis Nijmegen29 that, in the area of criminal law, the duty to interpret in light of the purposes and wording of the Directive is subject to the general principles of legal certainty and non-retroactivity. Therefore, a Directive could not ‘by itself and independently of any national measures adopted to give effect to it, determine or aggravate the criminal liability of those who acted in breach of its provisions’. d. Finally, one must mention the decisions of the Commission on basis of Articles 85–86 EEC. A criminal offence could be justified if it stems from the facts of the case that it is based on a system enjoying Community exemption on the basis of Articles 85–86 EEC. Indeed, a verdict of guilty in the criminal proceedings would then conflict with Com­munity law as it resulted from a Commission decision, which constitutes law and is bind­ing throughout the territory of the Community.30 2.1.2. Incompatibility between Community Law and Some Requirements Relating to the Con­tent of National Offences Owing to a rigorous definition imposed by Community law, either the Actus Reus or the Mens Rea can be restricted in their scope of application. 26  T.C. Hartley, ‘The Impact of European Community Law on the Criminal Process’, Criminal Law Review (1981) p. 75. 27  Case 88/79, ECR (1980) p. 1827. See also case 169/89, Gourmetterie, ECR (1990) p. 2143. 28  Case 108/80, ECR (1981) p. 433. 29  Case 14/86, ECR (1987) p. 2545 and case 80/86, ECR (1987) p. 3969. See also case 372-374/85, Traen, ECR (1987) p. 2141. 30  M. Delmas-Marty, Droit pénal des affaires (Paris, 1990) pp. 29–40.

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a. As regards the Actus Reus, there are few examples of Community provisions defining the Actus Reus of an offence in a more restrictive way than the corresponding domestic provi­sion.31 I In any event, this situation is very similar to those previously mentioned in which the national definition of the offence is invalidated by Community law. b. In connection with Mens Rea, the limiting influence of Community law is apparent espe­cially in the realm of customs duties. In Donckerwolcke,32 it was held that the require­ment, obliging the importing Member State to indicate the country of origin on the customs declaration document for products in free circulation, would constitute a measure equivalent to a quantitative restriction if the importer were required to declare with regard to origin ‘something other than he knows or may be reasonably expected to know’. This principle, which was reaffirmed in Rivoira and Levy,33 has had a considerable impact on the French custom legislation which prohibited to the acquittal of a defendant because of the lack of intent to defraud. Indeed, due to this Community case law, the Mens Rea of this infringement has been reduced from a purely material commission of the offence to the necessity of an intent (,what he knows’) or a professional negligence (‘what he may be reasonably expected to know’), with the effect that the incompatible French legislation has been repealed.34 Similarly, in Bouchara,35 criminal proceedings had been brought against a French importer who had passed on to his customers inter alia the composition details given to him by his manufacturers-suppliers. Such details having been revealed as inaccurate, the importer was strictly liable under French criminal law for the inaccuracy. The ECJ ruled that a national law requiring the person responsible for putting a product on the national market for the first time (including, for imported goods, the importer) to verify its conformity with that country’s rules on consumer protection and imposing strict liability in criminal law for breach is indeed compatible with Articles 30 and 36 EEC, but ‘on condition that its application to intra-community imports does not go beyond what is necessary to achieve the objectieve pursued, in the light of the public interest in question and the means of 31  See, e.g., regarding fraud concerning foodstuffs, the influence of Regulation 1619/68 on the relevant French decree, ibid. 32  Case 41/76, ECR (1976) p. 1921. 33  Case 179/78, ECR (1979) p. 2261 and case 212/88, ECR (1989) p. 3511. 34  For a more detailed commentary, see P. De Guardia, ‘L’élément intentionnel dans les infractions douanières’, Revue de Science Criminelle (1990) p. 487 and B. Bouloc, ‘L’influence du droit communautaire sur le droit pénal interne’, in Mélanges offerts à Georges Levasseur (Litec 1992), pp. 103–120. As regards English law, see case 207/83, Commission v. United Kingdom, ECR (1985) p. 1201, where the ECJ held that the Trade description (origin making) Order 1981 was not justified in Community law, but for reasons other than those mentioned above. 35  Case 25/88, ECR (1989) p. 1105.



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proof normally available to an importer’. In addition, ‘the importer must be entitled to rely on certificates issued by authorities (…) in the Member State of production or, in their absence, other attestations providing a like degree of assurance’. The Mens Rea of the offence has consequently been reduced from a material commission of the offence to the necessity of an intent to defraud. 2.2. With Regard to the Penalties Domestic penalties must be set aside or mitigated if their imposition would be incompatible with the general principles of Community law. Thus, it happened several times that principal or accessory penalties (such as deportation) imposed apparently in conformity with Com­munity law were nevertheless judged incompatible with the ‘proportionality principle’. ‘Pro­portionate’ means, according to the many cases where the ECJ applied this fundamental principle of Community law, that the penalties must be sufficiently, though not excessively strict, consideration being given to the Community objectives pursued. The national penalties must not be more severe than is necessary for the aim of the rule to be achieved in harmony with the freedoms guaranteed by the EEC Treaty and with secondary Community legisla­tion.36 The ECJ developed its case law essentially in relation to customs law, fiscal law and deportation. 2.2.1. Customs Law In its judgment Commission v. Greece37 of December 1992, the ECJ rejected Greece’s argu­ment stating that the determination of criminal sanctions for customs offences, in the absence of any harmonization of the latter, is an exclusive national competence outside of its jurisdic­tion. The Court held that even if the Member States are competent to chose the relevant sanc­tions, they cannot be so disproportionate that they would become an obstacle to the freedoms guaranteed by the Treaty. Thus, in Donckerwolcke38 and Rivoira,39 the ECJ ruled that the of­fence of false declarations made in order to facilitate the illegal importation of goods should not attract criminal penalties ‘disproportionate to the nature of a contravention of a purely administrative character’.

36  In relation to secondary legislation, see infra the comments on deportation. See also case 326/88, Hansen, ECR (1990) p. 2911, where it stated that road safety, one of the objectives of Regulation 543/69, is ‘a matter of public interest which may justify the imposition of a fine on the employer for infringements committed by his employees and a system of strict criminal liability’. 37  Case 210/91, ECR (1992) p. 6735. 38  Op. cit., note 32. 39  Op. cit., note 33.

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The underlying criterion to establish if the severity of the sanction is proportionate to the offence is the principle of the free movement of goods. This implies that the Member States are not allowed to apply customs sanctions which are more severe than those exclusively ap­plicable to the movement of goods on their national territory. But the criterion of this case law is not easily applicable because it only addresses infringements of ‘a purely administra­tive character’ – this category being not as well defined in the national law of some Member States as in the United Kingdom. The use of the criterion of ‘Community finances’, the cus­toms duties being part of the Community’s ‘own resources’ could offer a beter solution. If the offence does not affect the financial interests of the Community (by a loss of own re­sources), then the imposition of criminal sanctions could be regarded as an obstacle to the free movement of goods unless it falls within the exceptions of Article 36 EEC.40 2.2.2. Fiscal Law The proportionality principle, as it is also applied by the ECJ to fiscal law, is demonstrated in Drexl.41 The ECJ maintained that Community law sets certain limits in cases where national law may have an impact on the neutrality of internal taxation with regard to intra-Com­munity trade, as required by Article 95 EEC and on the proper functioning of the common system of VAT in that ‘there would be (…) such an effect if a penalty were so disproportion­ate to the gravity of the offence that it became an obstacle to the freedom guaranteed by Com­munity law’. The ECJ found that a disproportionate disparity in severity of penalties was evident between those imposed by customs law and the law applicable to internal taxes in that imprisonment and confiscation were either not available or ‘not generally applied’ for ‘internal’ tax offences. Consequently, the higher penalties for customs offences could violate the principle of free movement of goods. In fact, the ECJ ruled that Member States are not required to have the same penalties for the two categories of offence, as long as the differences were not too great. This judgment did not go as far as the opinion of the advocate-general who considered that ‘the rules applic­able to importation must not be less favourable than those governing similar domestic trans­actions’, unless to ‘attach particular significance to the crossing of a frontier within the Community, which is incompatible with the Common Market’. The advocate-general reached the 40  P. Anaboli-Alegre, ‘Les sanctions douanières dans la perspective du marché intérieur’, Revue du Marché Commun (1991) p. 727. 41  Case 299/86, ECR (1988) p. 1213 with comment by J. Lonbay, ‘A Review of Recent Tax Cases’, European Law Review (1989) p. 48; see also the case Sune, CMLR (1993) p. 426, where the French Court of Cassation ruled that ‘tax penalties are outside the ambit of the EEC Treaty and therefore their effect on free movement of goods is irrelevant’. It was indeed a purely domestic situation.



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conclusion that it was unacceptable to apply stricter penalties for non-payment of VAT on importation than for non-payment of internal VAT on domestic sales of similar goods. 2.2.3. Deportation If an offender recommended for deportation is a Community citizen, the national court will have to comply with Community law, especially Article 48 EEC, Directive 64/221 and Di­rective 68/360.42 Under Article 48 EEC, Community nationals have a general right to immi­grate to another Member State in order to work,43 but this is subject to exceptions on public policy grounds. Therefore, the deportation of a Community worker convicted of an offence is only justifiable on these grounds. However, criminal convictions do not ‘in themselves’ con­stitute a ground for invoking the exceptions.44 The ECJ has had many opportunities to clarify the meaning of these provisions, namely by applying the proportionality principle but also by requiring that deportation cases be based on individual deterrence. Indeed, in Bonsignore,45 the ECJ ruled that it followed from Article 3 EEC and Directive 64/221 that ‘general deterrence’ (deterring other aliens in general from committing similar crimes) is not a sufficient ground to order deportation of a person convicted of a criminal of­fence. The ECJ clarified its case law in Bouchereau,46 by ruling that in order to deport a Community immigrant the existence of a previous criminal conviction can only be taken into account insofar as ‘the circumstances which gave rise to that conviction are evidence of per­sonal conduct constituting a present threat to the requirements of public policy’. It then added that ‘although, in general, a finding that such threat exists implies the existence in the individual concerned of a propensity to act in the same way in the future, it is possible that past conduct alone may constitute such a threat to the requirement of public policy’. As far as the United Kingdom is concerned, this principle has been confirmed in Tamdjid-Nezhad 47 and very recently applied in Marchon.48 Thus, it seems that, although individual deterrence is not the only permissible ground of deportation, only in rare cases will 42  See C. Vincenzi. ‘Deportation in Disarray: The Case of EC Nationals’, Criminal Law Review (1994) p. 163. 43  In the United Kingdom, the term ‘worker’ is interpreted by reference to the degree of industry demonstrated and the nature of work performed. 44  Article 3 (2) of Directive 64/221. 45  Case 67/74, ECR (1975) p. 297. 46  Case 30/77, ECR (1977) p. 1999. See also case 175/78, Saunders, ECR (1979) p. 1129. 47  [1986] Imm.A.R. 396. 48  CMLR (1993) p. 132. Note the judgment per Dillon L.J. who finds that ‘proportionality is subsumed in the definition of public policy under the rule in Bouchereau and is therefore not available as an additional plea’.

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other grounds be applied.49 For instance, the ECJ recently ruled, in Roux,50 that non-compliance with national rules on registration with a social security scheme could be penalised, but not by deportation. The notion of ‘public policy’ has also been clarified in Bouchereau. It presupposes ‘the existence, in addition to the perturbation to the social order which any infringement of the law involves, of a genuine and sufficiently serious threat affecting one of the fundamental inter­ests of the society’. This requirement might seem fairly strict, with the effect that, in Bou­chereau, no recommendation for deportation was made when the case recommenced before the English court. Nevertheless, the Court of Appeal (crim. div.) misinterpreted these re­quirements and ruled wrongly in a more recent case51 that they mean no more than that the Community national’s continued presence in the United Kingdom would be to its detriment and that ‘Community law here simply mirrors the law and practice of England’. In connection with immigration offences, the ECJ has had the opportunity to develop the proportionality principle in relation to secondary law. Indeed, it results from the rulings of the ECJ in the cases Sagulo, Royer and Watson52 that the authorities of a host Member State are only entitled to require that an immigrant enjoying the protection of Community law possess a special residence permit provided for in Directive 68/360. Member States may con­sider the failure to comply as a criminal offence but, as the ECJ ruled, a residence permit pro­vided by this Directive having only a declaratory effect, it does not imply a discretion for the national authorities, with the effect that ‘any penalties imposed must not be disproportionate to the nature of the offence committed’, nor may the offender be deported. Regarding the United Kingdom, those principles were confirmed in Piek,53 where the ECJ stated that the failure of a Community national to obtain the special residence permit may re­sult in penalties under national law which are comparable to those associated with minor of­fences committed by nationals, but no penalty disproportionate to the gravity of the offence may be imposed such as imprisonment or deportation. This ruling had a direct impact on British legislation, since under the Immigration Act 1971, only persons convicted of an of­fence punishable with imprisonment can be recommended for deportation54 and the charge against Mr. Piek has been dropped by the police. 49  T.C. Hartley, ‘The Impact of European Community Law on the Criminal Process’, Criminal Law Review (1981) p. 75. 50  Case 363/89, ECR (1991) p. 273. 51  Escauriaza, CMLR (1989) p. 281. 52  Case 8/77, ECR (1977) p. 1495; case 48/75, ECR (1976) p. 497 and case 118/75, ECR (1976) p. 1185. 53  Case 157/79, ECR (1980) p. 2171. 54  Section 3 (6) and 6 (1) of the Immigration Act 1971.



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2.3. With Regard to Rules of Criminal Procedure The supremacy of Community law is also evident in the domain of criminal procedure. In fact, internal criminal procedures may neither create nor maintain obstacles, grounds for ex­tensions of time or injunction which hinder the direct and uniform application of Community law. A clear answer to the question of whether an administrative authority such as the public prosecutor is required to refrain from applying provisions of national law which conflict with Community provisions having direct effect, even if the national legislature has failed to im­plement them, was given in Costanzo.55 All organs of the administration (thus including the public prosecutor) are obliged to apply the directly working provisions of Community law, with the effect that a public prosecutor cannot charge or prosecute suspects if it would be contrary to those provisions.56 Similarly, a judge of a Member State cannot apply rules likely to delay the declaration of non-applicability of its domestic criminal law incompatible with a directly working Community provision (for example an interlocutory question to its Supreme Court, even if this question is consistent with the case law of this Court). The national judge would also be unable to increase the severity of a penalty on the basis of the res judicata of a former conviction that hinged upon a criminal provision which has been held to be contrary to Community law.57 It results indeed from Tymen and Bout 58 that ‘where criminal proceed­ings are brought by virtue of a national measure which is held to be contrary to Community law, a conviction in those proceedings is likewise incompatible with Community law’.

3. Extension of the National Criminal Law The internal definitions of criminal offences, the determination of penalties and the rules of criminal procedure are all broadened through the substantial influence of Community law. Each will be examined in turn. 3.1. With Regard to the Definition of Criminal Offences Many Community norms are enforced within the legal order of the Member States by means of criminal law. This is true primarily in areas of economic or commercial interest that fall within the competence of the Community such as financial issues, agriculture or transport. In the case, where the scope of application of the Community norms to be enforced is wider than those of existing Case 103/88, ECR (1989) p. 1839. H. Sevenster. ‘Criminal Law and EC Law’. Common Market Law Review (1992) p. 29. 57  F. De Angelis, ‘L’effet de convergence du droit communautaire sur la procédure pénale des Etats membres’, in M. Delmas-Marty, Procès pénal et droits de l’homme (Paris 1992) pp. 285–290. 58  Case 21/81, ECR (1982) p. 381. 55  56 

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domestic criminal indictments, the scope of those indictments is itself widened or sometimes entirely new criminal offences are introduced. A distinction has to be made between offences concerning Community finances and of­fences against Community law, but which concern essentially national interests. The crite­rion delimiting both offences is whether it has an impact on the Community budget. If the answer is yes, it is a question of ‘fraud against the Community’, if not, it is classified as an offence ‘against domestic interests’.59 Indeed, not all the offences in the Community, even if they concern Community law, are offences against the finances of the Community. For in­ stance, insider trading will not affect the Community budget. Secondly, one must also distinguish ‘direct’ and ‘indirect’ implementation of Community law. The direct implementation of Community law means that national criminal law refers directly to a Community norm, without incorporating the latter into the domestic legal order. This procedure is generally used to implement Regulations.60 One should note however that Community law is most often implemented in an indirect manner, that is that the Community norms are first incorporated into national law and then violations of these incorporated norms are made into criminal offences. 3.1.1. Offences against National Interests A distinction in the enforcement of Community law may be made depending on whether it concerns primary Community law (Treaties and annexes) or secondary Community law (Regulations and Directives61). a. As regards primary Community law, it is generally agreed that the Community legislature can expressly require by treaty the enforcement of some provisions by means of criminal law. In so doing specific references to internal criminal law which are to be found in the Treaties have widened the scope of national offences.62 Firstly, there is Article 194 of the Treaty establishing the European Atomic Energy Community (EAEC), which compels the Member states to treat any disclosure of the se­crets defined in this article as an act prejudicial to their corresponding rules on secrecy as articulated in their domestic 59  See the definition of ‘fraud against the Community’, in J. Vervaele, Fraud against the Community (Deventer 1992). 60  E.g. the Dutch criminal law of 28 June 1989 taken in order to implement Regulation 2137/85, D.R. Doorenbos, ‘EG-recht en strafwetgeving’. Delikt en Delinkwent (1992) p. 1041. 61  Recommendations and Opinions are not relevant because they are not binding; nor are Decisions, which are binding but only individually targeted (Article 189 EEC). 62  The Treaty articles are most frequently ‘directly’ implemented, but in some countries ‘indirect’ implementation has been chosen, see, e.g. the Dutch law of 1963 implementing Article 70 ECSC, cited by D.R. Doorenbos, op. cit., note 60, 1041.



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criminal laws. The lack of domestic offences protecting the secrets of the EAEC made this Article indispensable. Consequently, the Member States were obliged to widen the scope of their internal criminal indictment in order to incorpor­ate violations of this principle of professional secrecy.63 This is a typical example of the ‘assimilation principle’, as established by the ECJ in the Greek maize case64 and taken up in the Maastricht Treaty. That is that Community law obliges the Member States to apply their internal provisions protecting specific na­tional interests to the corresponding interests of the Community. This principle has an ‘in­dictment-creation’ function when the corresponding domestic norm is a criminal offence. Indeed, although Community law needs national implementation to be enforced, it never­theless leads to the criminalization of certain behaviour which otherwise would have avoided criminal sanctions. Such an assimilation process offers the advantage of flexi­bility which makes the acceptance of the new offence in the domestic law easier. It also creates a disparity in the degree to which the interests of the Community are protected in each Member State. It implies very good cooperation between the Member States in such areas as deportation and enforcement of foreign judgements. Until now, Article 194 remained of relatively theoretical importance, the ECJ having not yet had the opportunity to consider this provision. In the United Kingdom, it has how­ever been incorporated by the European Communities Act 1972 which extends the appli­cation of the Official Secrets Acts 1911–1939 to unauthorized disclosures of such classified information.65 The ‘assimilation principle’ is also laid down in Articles 3 and 27 of the Statute of the ECJ (and the corresponding Articles of the Statutes of the ECSC and the EAEC66). Ac­cording to Article 3, the immunity enjoyed by the judges and advocates-general of the ECJ from criminal proceedings in respect of their official acts is subject to waiver by the ECJ in plenary session. If the ECJ waives the immunity of a judge or advocate-general, criminal proceedings may be instituted in any of the Member States. Article 27 deals with action to be taken in connection with perjured witnesses and obliges the Member States to ‘treat any violation of an oath by a witness or expert in the same manner as if the offence had been committed before one of its courts with jurisdiction in civil proceedings’. The Member States concerned shall prosecute the offender before a competent national court.

C. Van den Wijngaert, ‘Droit pénal et Communautés européennes’, RDPC (1982) p. 838. Case 68/88, Commission v. Hellenic Republic, ECR (1989) p. 2965. 65  Section 11(2). See J.W. Bridge, ‘The European Communities and the Criminal Law’, Criminal Law Review (1976) p. 88. 66  Articles 3 and 28 of both Statutes. 63  64 

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In the United Kingdom, this issue is also covered by the European Communities Act which extends the application of the Perjury Act 1911. b. While there is no doubt that Treaty Articles may require Member States to penalise by means of criminal sanctions, some authors ask whether this is legitimate for Regulations, although some Regulations clearly contained such a requirement.67 It is possible that the Community legislature may find that a criminalization is desirable with a view to some harmonization of European economic criminal law.68 Indeed, an obligation to penalise contributes to the desired harmonization by defining the criminal offence at a Community level. The margin of discretion of the Member States is then reduced to the determination of the kind of sanction and its maximum level within the limits created by the case law of the ECJ.69 This analysis is consonant with the cases Casati 70 and Cowan,71 whereby the ECJ stated that ‘in principle, criminal legislation and the rules of criminal procedure are matters for which the Member States are still responsible’. Indeed, in both cases the mat­ter in hand did not regard the penalization of transgressions of Community law, but rather the limits which Community law provides to circumscribe the repressive power that the Member States possess with regard to infringements of national law.72 In any case, the nature of the Regulation, as derived from Article 189 EEC, does not pose any obstacle to the possible imposition of sanctions and indeed there are many examples of Regulations requiring Member States to penalise.73 In principle, unless the Regulation provides otherwise, the Member States are free to determine the nature of the penalties,74 which includes the possibility to adopt criminal sanctions. In fact, it is only in the field of Common Agricultural Policy, more precisely in matters relating to Community fraud, that Regulations have systematically provided for sanctions that determine a specific type of penalty for each category of infringement and oblige Member States to introduce and apply such penalties, without the power to determine their E.g., D. Doorenbos, op. cit., note 60, p. 1041. See, e.g., in the field of money laundering (infra). 69  D. Doorenbos, op. cit., note 60, p. 1041, believes that the Community legislature is also competent to determine the concrete sanctions to be enforced by the Member States. However, in this argument, the sanction has to be sufficiently detailed and differing translations must be avoided because they could result in the creation of different scopes of application for the Community offence and consequently result in different levels of criminal responsibility from State to State. 70  Case 203/80, ECR (1981) p. 2595. 71  Case 186/87, ECR (1989) p. 195. 72  R. Fornasier, ‘Le pouvoir répressif des communautés européennes et la protection de leur intérêts financiers’, Revue du Marché Commun (1982) p. 398. 73  For examples, see ibid. and also J.W. Bridge, op. cit., note 65, p. 88. 74  Case 50/76, Amsterdam Bulb, ECR (1977) p. 137. 67  68 



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content using their domestic law-making process.75 The competence of the Com­munity legislature to adopt such sanctions has been very recently contested in the case Germany v. Commission.76 The German Government challenged the validity of Article 6, para. 6, of Regulation 3007/84 (laying down detailed rules for the application of the pre­mium for producers of sheepmeat) and Articles 13, paras. 3 b and c, of Regulation 3813/89 (establishing detailed rules for the application of the system of transitional aids to agricultural income). These articles require the imposition of sanctions on persons who have committed irregularities while applying for financial assistance available under Community law. These sanctions take the form of either an ‘exclusion’ from future benefits or the payment of an amount which is additional to the refund of the benefit al­ready paid with interest (‘surcharge’). The ECJ ruled that, according to its case law, the Commission, in executing the powers delegated by the Council, may require the imposi­tion of either kind of sanction and that a general power delegated by the Council to adopt detailed rules for the implementation of a Regulation is apt to include the imposition of such sanctions as may be necessary to ensure the effectiveness of the rules laid down. A broad power of implementation conferred on the Commission is thus sufficient to include the power to penalise. This judgment thus confirms the position taken by the Commission in its recent Proposal for a Regulation on the checks and penalties applicable under the Common Agricultural and Fisheries Policies,77 whereby it wishes to clarify its com­petences in these fields. It is not easy to determine the direct criminalizing influence of the Regulations on the laws of the Member States, since the Regulations are ‘directly applicable’ and need not to be implemented. Any implementation measure which went further than those prescribed (and consequently allowed) by the Regulation is strictly forbidden. It results indeed from the case law of the ECJ that for national legislative provisions to paraphrase or even copy the content of a Regulation would create doubts regarding the legal nature of the applic­able provisions and their date of coming into force. Moreover ‘it would create an obstacle to the direct effect of Regulations and of jeopardizing their simultaneous and uniform ap­plication in the whole of

75  For examples of these sanctions, see G. Grasso, ‘Nouvelles perspectives en matière de sanctions communautaires’, Revue de Science Criminelle (1993) p. 265. 76  Case 240/90, ECR (1992) p. 5383. with comment by G. Stessens. ‘De bevoegdheid van de Europese gemeenschap tot het vaststellen van sancties: op weg naar een communautair strafrecht?’, Rechtskundig Weekblad (1993) p. 137. 77  OJ, 1990, C 137110.

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the Community’.78 Consequently, an indirect implementation of a Regulation is only allowed in the event that it contains an explicit authorization or obli­gation to take implementation measures such as sanctions. For instance, in Franken,79 the ECJ ruled that, with a view to the relevant Community provisions following which the Member States are obliged to take all the necessary measures to ensure that the denatured sugar was used solely for animal feed, they enjoyed ‘full discretion in laying down penal­ties designed to ensure that the provisions of Community law were observed’. One must also mention that the principle of direct implementation of Regulations is not without risk, in that by directly referring to a precise Community norm, a national criminal provision can become obsolete because of the subsequent modification of this norm. There have been already acquittals due to direct references by national criminal law to Community provisions which were out 0f date.80 When the Member States are obliged to implement a Regulation provision providing for sanctions, the competent authorities to determine the sanction (civil, administrative or criminal) and the related rules of procedure (such as the ways to make appeal against an internal decision to apply a sanction) are determinated by domestic laws.81 All the auth­orities of the Member States including the courts are expected to implement Community law. For instance, in the Raiffeisen case,82 which regarded a dispute relating to security made by national authorities on the basis of an invalid Regulation, the ECJ clearly pointed out that ‘in so far as Community law does not provide otherwise, disputes relating to the refund of amounts collected on behalf of the Community fall within the jurisdiction of na­tional courts and should be settled by those courts by applying their own national law, both procedural and substantive’. This procedural autonomy in the hands of the Member States with respect to the imposition of penalties for the infringement of provisions of Community law has been limited in two ways by the ECJ: firstly, the national penalties resulting from the infringement of provisions of Community law must be ‘effective, pro­portionate and dissuasive’ and secondly, the Member States must penalise infringements of Community law in a way similar to the enforcement of national provisions. 78  R.H. Lauwaars. ‘Implementation of Regulations by National Measures’, Legal Issues of European Integration (1983) p. 41. 79  Case 77/81, ECR (1982) p. 694. 80  U. Sieber, ‘Union européenne et droit pénal européen: propositions pour l’avenir du droit européen’, Revue de Science Criminelle (1993) p. 249. 81  Case 14/83, Von Colson, ECR (1984) p. 1839. 82  Case 199/86, ECR (1988) p. 1169; see also case 130/79, Express Dairy Foods, ECR (1980) p. 1887, cited by C. Hagueneau, ‘Sanctions pénales destinées à assurer le respect du droit communautaire’, Revue du Marché Commun (1993) p. 351.



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Of course, those limits do not guarantee that the domestic sanctions shall have a criminal character, but they can nevertheless influence the form of sanctions in certain sensitive areas.83 This being said, when Regulations define a norm and require the Member States to take the appropriate steps to punish any infringement of this norm, national sanctions must consequently be adapted, with the effect that Community law and national law become ‘intertwined’. After all, the Community sets a norm and the Member States set the sanction. When Member States adopt criminal sanctions, this system (also called ‘inte­gration by reference to another measure’) leads to ‘the creation of criminal offences of a hybrid nature: within the scope of domestic law as regards the penalty, but within the scope of Community law as regards the definition of the offence’.84 This intertwining is particularly remarkable in reference to the Common Agricultural Policy (which includes fishing activities85), where the Regulations frequently oblige Member States to provide for adequate sanctions guaranteeing compliance. The offences determined by those Regulations are often in the category of food-related fraud, criminal offences in many countries including the United Kingdom. For instance, in the field of food standards, under British law the Hops Certification Regulation 197986 implementing Regulation 1696/71 on the Common organization of the market in hops,87 contains of­fences connected to the sale of uncertified and improperly packed hops, acts which are penalised by fine or imprisonment. Similarly, the Eggs (Marketing Standards) Regulation 197388 establishes offences relating to the packing, grading and marking of eggs, and as­sesses fines, in fulfilment of an obligation to sanction provided bt; Regulation 1619/68.89 Regarding fishing activities, Article 11 C of Regulation 2241/8790 requires national auth­orities to take ‘penal or administrative measures’, which may lead to depriving those who are responsible for a violation of any consequential economic profits or to any other result commensurate with the seriousness of the violation and sufficient to deter future similar violations’. See infra. M. Delmas-Marty, Droit pénal des affaires (Paris 1990) pp. 29–40. 85  Article 38 EEC. 86  Reg. 3, S.I. 1979, N° 1095, cited by C.S.P. Harding, ‘The European Communities and Control of Criminal Business Activities’, International and Comparative Law Quarterly (1982) p. 246. 87  Substituted by Regulation 1170/77. 88  Reg. 9, S.I. 1973, N° 15, cited by J.W. Bridge, ‘The European Communities and the Criminal Law’, Criminal Law Review (1976) p. 88. 89  OJ, L 258, 489. 90  OJ, 1987, L 207, I, added by Regulation 3483/88, OJ, 1988, L 306/2. 83  84 

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Similarly, in the field of transportation, Regulations lay down offences relating to minimum ages for crews, the keeping of records, manning requirements, and drivers’ hours for certain types of vehicles, all of which are penalised by means of sanctions of a criminal nature in many Member States.91 As regards British law, criminal penalties for the breach of such Regulations were provided by the Transport Act 1968 (as amended by the European Communities Act 1972). Criminal charges may also follow in various other domains such as Community surveys of salaries and wages and customs offences. Finally, it can be observed that occasionally the national legislature has no choice but to enforce the Community provision by recourse to criminal law. Indeed, a Regulation, even if it does not require the Member States to criminalize an act, can nevertheless have the same effect, via the ‘assimilation principle’, that is obliging them to apply to the Com­munity interest the domestic rules protecting the corresponding national interest.92 When corresponding offences to the national interest are penalized by criminal sanctions, a criminal protection of the Community interest in domestic law is inevitable. In other cases, Regulations oblige Member States to provide for ‘adequate measures to guarantee compliance with it’ which necessarily includes criminal sanctions. An example is given by Article 8 of the Regulation 3677/9093 on the illicit manufacture of narcotic drugs. This Article obliges the Member States to impose penalties which are ‘sufficient’ to guarantee compliance with its provisions. Lastly, a Regulation, by stipulating the economic effect of the sanctions to be applied, may imply its enforcement by criminal law as, for instance, Article 11 C of Regulation 2241/87 establishing certain control measures for fishing acti­vities.94 c. Regarding Directives, their nature seems to indicate that the only way to implement them is by ‘indirect’ means. Indeed, unlike Regulations, Directives must always be incorpor­ated in domestic law. Moreover, as underlined in Kolpinghuis, ‘a Directive cannot, of it­self and independently of national implementation legislation, have the effect of determining or aggraving the criminal liability of persons acting in breach of its provi­sions’. Nevertheless, it is conceivable that a national legislature would implement a Directive by directly referring to one of its provisions (in order to 91  For Netherlands, see M.R.A. Guldenmund, Strafrechtelijke handhaving van gemeenschapsrecht (Arnhem 1992). 92  The ‘assimilation principle’ is also provided in some Regulations, see for instance Regulation 1468/81; see also Regulation 188/64 (OJ, 1964, p. 3634). 93  OJ, 1990, L 357/1. 94  Op. cit., note 90. See also W. Van Gerven and G. Wils, ‘Case Law of the Court of Justice and the Protection of Community Finances’, in Commission of the EC, Legal Protection of the Financial Interests of the Community (Brussels 1989) pp. 334–349.



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determine the definition of a rule) and then penalizing its infringements by criminal sanction in national law. In this situ­ation, the criminal liability does not seem to be influenced by a Directive ‘of itself and in­dependently of national implementation legislation’. The criminal liability is indeed totally ‘dependant’ on the direct reference made by the national legislature.95 Once the Directives are ‘indirectly’ implemented, and consequently integrated into do­mestic law, they are not always easily distinguishable from other national rules, especially when they replace pre-existent national texts. The effect is that the infringements to the text incorporating the Directive will be penalized by the criminal sanction punishing the infringements to the pre-existent national text. This difficulty appears in the various fields which are generally ruled by Directives, such as company law, fiscal law, environmental law, accountancy law or even pharmaceutical law. However, some Directives have had a considerable impact on domestic criminal laws, notably Directive 89/592 coordinating regulations on insider trading96 and Directive 91/308 concerning the prevention of the use of the financial system to launder suspect funds.97 The Directive on insider dealing (1989)98 does not introduce a uniform law governing this practice. It provides for a minimum obligation to be translated into the national legal systems, namely the requirement to prohibit and penalize insider trading, but does not take a clear stand on how the Member States should proceed. When the first proposal for a Directive on insider dealing was presented by the Commission, it clearly required the Member States to make insider trading a criminal offence. However, because of the un­compromising position of Germany, the Commission was forced to change this obligation into a new provision stating that ‘each Member State shall determine penalties to be ap­plied for infringement of the measures taken pursuant to this Directive.’ But it is required that ‘the penalties shall be sufficient to promote compliance with those measures’. Given the fact that insider trading was already considered a criminal offence in most of the Member States, it can be assumed that almost all of the States have or will now introduce criminal sanctions in this field.99 D.R. Doorenbos, ‘EG-recht en strafwetgeving’, Delikt en Delinkwent (1992) p. 1041. OJ, 1989, L334/30. 97  OJ, 1991, L116/77. 98  For a detailed and comprehensive study of this complex matter, see K. Hopt and E. Wymeersch, European Insider Dealing (Butterworths 1991); see also P.L. Davies, ‘The European Community’s Directive on Insider Dealing: from Company Law to Securities Market Regulation?’, Oxford Journal of Legal Studies (1991) p. 93, and M. Ashe and L. Counsell, Insider Trading, the Tangled Web (London 1990). 99  For a comparative overview of the domestic sanctions see K. Hopt and E. Wymeersch, op. cit., note 98, 65. 95  96 

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Indeed, by requiring the Member States to adopt sanc­tions sufficient to deter, this Directive clearly leads States to impose criminal liability in this area and, in so doing, contributes to the harmonization of the various national crimi­nal legislations. It brings national strict laws and their more lenient counterparts closer together, Member States having always the opportunity to adopt more stringent provisions within the limits laid down by the ECJ. As far as the United Kingdom is concerned, insider dealing has been a criminal offence since 1980. The insider dealing legislation is currently contained in the Criminal Justice Act 1993, Part V. The previous legislation was contained in the Companies Securities (In­sider dealing) Act 1985. As there were certain areas where the previous legislation and the Directive differed, the following positive steps, enacted in the Criminal Justice Act 1993, have been taken to implement the Directive. Regarding the Actus Reus, the Act of 1985 required an individual to ‘be connected with a company’ in order to be an insider, while the definition in the Directive imposes no such requirement. This important difference has been taken into account in the new crimi­nal legislation with the effect that criminal liability is incurred as long as the insider ob­tains information ‘by virtue of the exercise of his employment, profession or duties’.100 It is no longer a bar to liability that the employment, profession or duties did not create a business, professional or employment relationship between the insider (or his employer) and the company. This is clearly contrary to previous legislation.101 Nor, provided the in­formation was obtained by virtue of the employment, profession or duties, does it matter whether the circumstances were likely to lead to the knowledge in question. Another im­portant difference is the abolition102 of the time-limit included in the Act of 1985, under which insiders were only covered by the prohibition on insider trading if they were con­nected with a company ‘at any time in the preceding six months’ and obtained the inside information during this period. Although this time-limit seemed unlikely to have any practical effects, because of the dramatic diminuation of the value of the inside informa­tion with the passage of the time,103 such a provision was nevertheless clearly contrary to the Directive, which requires that there should be no temporal limitation on its operation. Lastly, the Act of 1985 applied only to dealing Section 57 of Criminal Justice Act 1993. The Act of 1985 did not catch anyone who had price-sensitive information, but who either is not connected with the company or who, though connected, did not acquire the information by virtue of the connection. See examples cited by P.L. Davies, op. cit., note 98, 93. 102  Section 57 of Criminal Justice Act 1993. 103  A. Padfield, ‘The EEC Insider Dealing Directive and UK Law’, European Business Law Review (1992) p. 223. 100  101 



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in ‘company securities’, whereas the Di­rective applies to ‘securities’ and defines these broadly to include shares and debt se­curities, share options or warrants and future contracts.104 As regards the Mens Rea, the Criminal Justice Act 1993, in accordance with the Direc­tive, departed from the Act of 1985 and removed the requirement concerning the ‘con­fidentiality’ of the information obtained. The emphasis will consequently be placed entirely on the information being precise, non-public and price sensitive. The fact that it was or was not confidential is irrelevant. This will of course extend the criminal liability of the insiders because it would now be immaterial whether they knew or ought to have known that the information provided was confidential. The accent will only be up0n the insider knowing that the specific information was unpublished and price-sensitive.105 Another Directive which has undoubtedly exerted a strong influence on the criminal laws of the Member States is the Directive on money laundering (1991).106 Its preamble states that it is very important for money laundering to be combatted and that this can best be done by means of the criminal system. Criminals should not be able to profit unre­stricted from the free flow of money within the European Market and, by laundering money, contribute to the growth of organized crime. Therefore, in order to provide for suitable sanctions, the preamble requires the Member States to make money laundering a criminal offence. Although the preamble of a Directive is not binding in itself, it results from the case law of the ECJ107 that it should be considered for purposes of interpretation and does limit in an important way the discretionary power of the Member States. An im­portant point, especially with respect to the fight against Community fraud, is that the Di­rective is not limited to offences of drug trafficking, but encompasses proceeds from any other ‘serious’ crime. While some Member States already had wide-ranging legislation against money laundering of any kind, others such as the United Kingdom aimed only at the laundering of drug proceeds and some had no express provision criminalizing money laundering at all (Germany). In addition to the obligation of the Member States to introduce legislation prohibiting the laundering of proceeds Section 54 of the Criminal Justice Act 1993. Section 56 of the Criminal Justice Act 1993. 106 See C. Sallon and D. Bedingfield, ‘Drugs, Money and the Law’, Criminal Law Review (1993) p. 165; F. Keyzer-Ringnalda, ‘European Integration with regard to the Confiscation of the Proceeds of Crime’, European Law Review (1992) p. 499; K. Magliveras, ‘Defeating the Money Launderer; The International and European Framework’, Journal of Business Law (1992) p. 161; M. Cole, ‘Money Laundering’, JIBL (1993) p. 129 and D.R. Doorenbos, ‘Het criminaliseren van ‘money laundering’ als communautaire verplichting’, Delikt en Delinkwent (1993) p. 351. 107 Case 7/90, Vandevenne, ECR (1991) p. 4371. 104  105 

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from any serious crime, the Directive ensures that credit and financial institutions facilitate investigations into money launde­ring operations. This is done by keeping adequate records of suspicious transactions and establishing identification procedures of customers. The Directive also allows the Mem­ber States to extend its provisions to all those professions and undertakings that are in­volved in cash transaction business (e.g. casinos, art dealers …). In the United Kingdom, this Directive expanded the criminal liability of the offenders, as well as the Actus Reus and the Mens Rea of the infringement. The provisions against the laundering of drug-related profits were contained in the Drugs Trafficking Offences Act 1986 (DTOA).108 Giving effect to the Directive, the Criminal Justice Act 1993 amends on the one hand the DTOA in several particular areas109 and, on the other hand, inserts a new section – ‘Money laundering and other offences’ – into what was the Criminal Justice Act 1988.110 The Criminal Justice Act 1993 expands the scope of the offence to cover the laundering of the profits of crime in general, with the effect that the offence of money laundering may now derive from ‘any criminal conduct generating proceeds’. It thus adopts an even more extensive scope of application than that proposed by the Directive which limits the offence to ‘serious crime’. Indeed, the new offence of money laundering is defined as ‘knowingly assisting another to retain the benefit of criminal conduct; or ac­quiring, possessing or using proceeds of criminal conduct; or concealing or transferring proceeds 0f criminal conduct’.111 This offence is punished with criminal sanctions.112 As regards the DTOA, several new offences have been created, such as ‘knowingly acquiring property that is in whole or in part another person’s proceeds of drug trafficking’ or ‘fail­ing to disclose to the police the fact (or suspicion) that someone is engaged in drug money laundering, if that knowledge or suspicion came about because of one’s employment’. Of course, the Directives on insider dealing and money laundering are not the only ones which affect national criminal laws. Some others Directives have influenced certain aspects of the criminal provisions of the Member States, in that they provide for measures guaranteeing compliance, which necessarily implies criminal sanctions. 108  Other provisions regarding money laundering could also be found in the Prevention of Terrorism Act 1989. 109  For a critical analysis of these amendments, see C. Sallon and D. Bedingfield, op. cit., note 106, 165. 110  Part III of the Criminal Justice Act 1993. 111  Sections 29 to 31 of the Criminal Justice Act 1993. 112  Section 32 (9) of the Criminal Justice Act 1993.



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An example pertaining to the United Kingdom would be Directive 72/166 ‘on the ap­proximation of the laws of Member States relating to insurance against civil liability in re­spect of motor cars and to the enforcement of the obligation to insure against such liability’,113 introduced in to British law by the Motor Vehicles (Compulsory Insurance) Regulations 1973.114 Those regulations make it a summary offence to use a motor vehicle without an insurance policy covering civil liability – an offence punishable by fine. In the field of environmental protection, Directive 79/409 regarding the conservation of wild birds115 requires Member States to ‘prohibit’ some activities harmful to the conservation of wild birds. Such measures, implying necessarily the adoption of criminal provisions, have been taken in the Wildlife and Countryside Act 1981 by penalising the relevant of­fences with criminal fines. Lastly, the ‘assimilation principle’ laid down in Directives could de facto compel na­tional legislatures to enforce their provisions using criminal law. For instance, the recent Proposal of Directive 91/447116 on the control of the acquisition and possession of weapons ob­liged Member States to apply the same sanctions for infringements of these provisions of Community law as for similar infringements of domestic law. But the resulting Directive modified the original proposal and adopted a formula similar to that of the Directive on insider dealing. 3.1.2. Offences against Community Finances a. Offences against Community finances are usually called ‘Community fraud’.117 A crime which may be defined as ‘fraud against the flow of funds to and from the EEC budget’.118 This budget, if viewed in terms of income, consists of a part of national VAT revenues and ‘traditional Own Resources’ (namely: customs duties, agricultural levies and specific sugar levies). On the expenditure side, the EEC budget goes toward funding the Common Agricultural Policy, the Structural Funds programme (regional development and transport, Social Fund) and smaller items such as food OJ, 1972, L103. SI, 1973, n° 1820. 115  Cited by R. Smith and alii, Memorandum supplied to the House of Lords Select Committee on the European Communities, Session 1990–1991, First Report on Money Laundering, H.L., 31. 116  OJ, 1991, L256/51. 117  The term ‘irregularity’ is generally used in Community law, since the word ‘fraud’ is somewhat ambiguous. Frankly, the terminology in this area is quite imprecise and may cause difficulties, see N. Martyn, ‘Community Fraud – An Analysis of the Phenomenon’, in Commission des Communautés Européennes, La protection juridique des intérêts financiers des Communautés européennes (Bruxelles 1992). 118  J. Vervaele, Fraud against the Community (Deventer 1992). 113  114 

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aid or research. Each of these components of the budget are subject to fraud, but it most often occurs in relation to agriculture, Structural Funds and national VAT.119 b. The Community legal instruments which are relevant in the struggle against Community fraud are to be found under the heading of ‘Community financial law’: namely Articles 199–209 A EEC and Financial Regulations. However, there is no legal definition of fraud at the Community level (excepted in very recent Proposals120 and it is up to the Member States to prosecute it on the basis of their own provisions in private, administrative or criminal law, but in conformity with the ‘assimilation principle’. Indeed, Article G (77) of the new Treaty on European Union, which entered into force in November 1993, provides that ‘Member States shall take the same measures to counter fraud affecting the financial interests of the Community as they take to counter fraud affecting their own financial in­terests’.121 Member States are responsible for carrying out Community policies as well as for the detection and investigation of fraud and its prosecution. The Commission, on the other hand, has specific powers to verify that Member States fulfil their obligations in accord­ance with the Regulations and the case law of the ECJ But the powers of the Commission vary by sector, namely whether it concerns Common Agricultural Policy,122 Own Re­sources and VAT123 or the Structural Funds.124 Article 8 of Regulation 729/70,125 which deals with the financing of the Community Agricultural Policy (CAP), obliges Member States to take such measures as are necessary to prevent and prosecute ‘irregularities’ and to recover the money involved. This ref­erence to the initiation of proceedings 119  For examples, see ibid. and also J. Van Der Hulst, EC Fraud (Deventer 1993); Commission des Communautés Européennes, op. cit., note 117 (Bruylant, Bruxelles 1992); A. Sherlock and C. Harding, ‘Controlling Fraud within the European Community’, European Law Review (1991) p. 20; House of Lords Select Committee on the European Communities, Fraud against the Community, H.L., 21 February 1989. 120  See infra, n° e. 121  A similar example could also have been found in the (never implemented) Proposal to amend the Treaties establishing the European Communities, with a view of creating a common regime with respect to both the penal protection of the financial interests of the Community and the prosecution of violations of those Treaties ­the well-known ‘Eurocrimes-proposal’. This Proposal aimed, among other things, to require Member States to protect infringements of the financial interests of the Community through penal measures in the same way as similar infringements of national interests were criminalized, see Commission Proposal to the Council for a Draft Treaty Amending the EC Treaties, 1976, OJ (C 222) 2. 122  See Article 9 of Regulation 729/70 (OJ, 1970, L94/16) and Articles 3 and 6 of Regulation 595/91 (OJ, 1991, L 67). 123  See Regulations 2/71 (OJ, 1971, L3/1-6), 165/74 (OJ, 1974, L 20/1-3), 2891/77 (OJ, 1977, L336/1), 1552/89 and 1553/89 (OJ, 1989, L155). 124  See Regulation 4253/88 (OJ 1988, L374/1). 125  OJ, 1970, L94/16.



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may of course authorize criminal proceedings. Similarly, according to Article 23 of Regulation 4253/88 regarding the Structural Funds and the several Regulations regulating Own Resources and VAT.126 Member States are obligated to make reports of cases of fraud or irregularities and to describe the measures taken to prevent such occurrences. The Commission specified the reporting duties of the Member States in Article 23 of Regulation 4253/88 in a ‘Code of Conduct’.127 This docu­ment defined the notion of ‘irregularity’ at a Community level as ‘any infringement of a legal provision whether at Community or national level by a physical or a legal person which has adverse consequences for the Community budget’. The Mens Rea of this in­fringement was thus very widely conceived insofar as every state of mind (intentional, ne­gligent, innocent …) was included. But the ECJ, on appeal brought against the Commission by France, 128 annulled this Code of Conduct because its obligations went beyond what was stipulated in the Regulation and fell thus outside the competence of the Commission. In all likelihood, the contents of this Code will be taken up in a future draft Regulation. c. The manner of enforcement of Community financial law differs from State to State. While other countries have introduced special provisions in their criminal code relating to sub­sidy fraud,129 the United Kingdom has to apply, apart from a single exception (Part IV of the Criminal Justice Act 1993), the general fraud provisions expressed in its criminal law.130 More specifically, in relation to subsidy or levy fraud, several criminal provisions of the Customs and Excise Management Act 1979 can be applied if the offence concerns the import of goods, namely fraudulent evasion of duty131 and making an untrue declara­tion.132 If the offence is unrelated to such international commerce, other criminal provi­sions are relevant, such as those under the Theft Act 1968 (obtaining goods by deception133 and procuring the execution of a valuable security by deception134), the Ag­riculture Act 1957135 and the Criminal Justice Act 1987 (conspiracy to

See supra, note 123. Code of Conduct for application of the provisions of Article 23(1) of Council Regulation 4253/88, OJ, 1990, C 200/3. 128  Case 303/90 (30 November 1991). 129  E.g. Section 264 of the German Penal Code. 130  See L.H. Leigh, ‘The English Approach’, in EC Fraud (Deventer 1993) pp. 47–52. 131  Section 170. 132  Section 167. 133  Section 15. 134  Section 20. 135  Section 7, para. 3. 126  127 

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cheat and de­fraud136). Penal provisions for forgery can also be applied in these cases. But, as it has been noted, there is one exception to this situation. More recently, under Part IV of the Criminal Justice Act 1993, a new kind of offence has been introduced in English law, ‘in connection with taxation, etc, in the EC’.137 The scope of application of these specific offences is limited to persons who, while in the United Kingdom, assist or induces any conduct outside the United Kingdom which involves the commission of a serious offence against the law of another Member State as it relates to or has an effect on Community duty or tax (Community customs duty, agricultural levy, VAT, etc.). These of­fences are punishable with criminal sanctions. Provisions of the Customs and Excise Management Act 1979 will be used for prosecution. These new offences bring important changes in two respects. Firstly, they introduce for the first time in English law autono­mous offences connected with Community fraud. Secondly, they seriously undermine the principle whereby the English jurisdiction in criminal matters is limited to offences occurr­ing on British soil.138 d. The prevention and prosecution of fraud cases are quite complex. It necessitates a rapid and good distribution of information, cooperation and coordination of actions between the Member States and between the Member States and the Commission, as underlined in the Maastricht Treaty itself.139 Various instruments have been created to realise this aim such as the mutual assistance Regulations140 and the SCENT.141 It is also the reason why, giving effect to a Resolution of 13 November 1991, a com­parative study on administrative sanctions in the Member States was undertaken by the Commission,142 ‘in order to see whether action should be taken to achieve greater com­patibility of these provisions’. This has been done with a view to further protect the finan­cial interests of the Community. The study is particularly noteworthy because of its recommendations for new Community legislation which would incorporate general prin­ciples appropriate to the development of a Community system of sanctions. Those recom­mendations will particularly address the body of sanctions which are Section 12. Section 71. 138  See L. de Moor, ‘The Legal Protection of the Financial Interests of the European Community’, in EC Fraud (Deventer 1993) pp. 11–16 and L.H. Leigh and A.T.H. Smith, ‘Fraud on the Common Market: Possibilities in National Law’, in Commission of the EC, Legal Protection of the Financial Interests of the Community (Brussels 1989) pp. 153–177. 139  Article G (77) introducing Article 209 A EEC. 140  For further details. see J. Vervaele. op. cit., note 118. 141  ‘System Customs Enforcement Network’. 142  By DG XX (Financial Control). See N. Martyn. ‘Commission Study on Administrative Sanctions in the Member States’, 2 Agon (1993) p. 6. 136  137 



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stipulated in Community provisions and are to be applied by the Member States, notably penalties under Common Agricultural Legislation. One difficulty encountered was the distinction between the words ‘administrative’ and ‘penal’ sanction, because of their evolving meaning. It results from the study that an ad­ministrative sanction can be defined as a sanction applied by an administrative authority because of a previous violation of a rule of law. It is characterised by its repressive aim and its detrimental effect on the person or property. It can be distinguished from criminal penalties mainly in that the latter is necessarily pronounced by a judge who is independent and impartial, while administrative sanctions are applied by the administration itself, the judge intervening only on appeal. In the United Kingdom, this distinction is not easy, fines being always pronounced by a judge. But the notion of ‘administrative fine’ is not unknown and nothing forbids the introduction of a corresponding competence for the ad­ministrative authorities. Moreover, ‘compounding’ could also be considered to be a real repressive power in the hands of the administration.143 Firstly, the study takes note of the existing incompatibilities between national sanctions (which lead to discrimination between the economic operators and to the creation of lacu­nae in the protection of the Community budget) as well as the inconsistencies between Community law and the national sanctions, insofar the latter do not respect the ‘assimila­tion principle’. Secondly, on the basis of this assessment, recommendations are made in order to make the fight against Community fraud more effective by assuring a greater compatibility between the relevant national provisions, which are often very complex and detailed. The most important recommendations are, on the one hand, the application, to Community sanctions, of the general principles recognised in the Member States and, on the other hand, the question of the accumulation of Community and national sanctions.144 Indeed, according to the study, the common recognition of democratic principles makes it possible to improve the protection of the financial interests of the Community through the incorporation of those principles in a regulatory framework for Community sanctions. The first widely recognised principle to be incorporated is that of legality (Nul­lum crimen, nulla poena sine lege, in the sense of Article 7 ECHR), which would apply Tiedemann. Principes généraux applicables aux sanctions communautaires. Projet de rapport général (1992), not published. 144  M. Delmas-Marty. Etude comparative des dispositions législatives, réglementaires et administratives des Etats membres relatives aux agissements frauduleux commis au préjudice du budget communautaire. Projet de rapport final (1993), not published. 143 

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to administrative as well as to criminal offences, even if this principle is already applic­able to the implementation of Community sanctions by the Member States.145 A less generally recognised principle applied to administrative sanctions, is that of culpability (Nulla poena sine culpa), with certain Member States imposing administrative sanctions under strict liability and others regarding the principle of culpability as necessary to give rise to liability. Because dominant legal opinion emphasises individual rights, it is recom­mended that liability should depend on the intention or negligence of the offender being established. This would bring an important harmonization of the laws of the Member States and run counter to the case law of the ECJ.146 Concerning the grounds for exclu­sion from this liability (‘mistake of fact’ or ‘mistake of law’), it is recommended that the ‘mistake of law’ should be recognised as exonerating the offender, with an objective standard of comparison (the normal reasonable and cautious men).The study also strongly recommend the introduction of notions which are not recognised in all Member States, namely those of ‘fraud against the law’ (maintain the possibility to penalise acts which, while not contravening the strict wording of the law, represents a deliberate evasion of its objective) and ‘liability of corporations’. Regarding the problem of the accumulation of Community sanctions with national ones when the same act is liable to be penalised at both levels, the principle ne bis in idem cannot be applied, as has been indicated by the case law of the ECJ in the field of compe­tition law. Regarding more specifically the Community sanctions laid down in agricultu­ral legislation, the study concludes that, although these sanctions are to be considered ‘minimum’ penalties stated to be without prejudice of the application of the relevant na­tional sanctions, the accumulation of both levels of sanctions may nevertheless constitute a penalty disproportionate to the offence committed. Therefore, it proposes that the pro­portionality principle, as it results from the case law of the ECJ, would have to be applied to this accumulation.147 Lastly, other recommendations foresee measures harmonizing procedure (such as the assurance of procedural guarantees, rules relating to the ‘extraterritoriality’ of criminal law and the prescription period) and propose the keeping of statistics which would distin­guish national interests from those 145  But a doubt may nevertheless remain as to the satisfactory fulfilment of this principle insofar as the European Parliament does not play a full legislative role in its adoption. 146  See case 326/88, Hansen, ECR (1990) p. 2911. 147  The Anrechnungsprinzip could also offer a similar solution, see G. Stessens, ‘De bevoegdheid van de Europese Gemeenschap tot het vaststellen van sancties: op weg naar een communautair strafrecht?’, Rechtskundig Weekblad (1993) p. 137.



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of the Community with regard to the establishment, the prosecution and sanction of the offences. This would allow the Community to be fully aware of which sanctions were being imposed in connection with Community fraud. e. Those recommendations, which have been examined by the Commission, inspired two very recent initiatives of the Commission in view of the protection of the financial inter­ests of the Communities. The first initiative regards Community law. It is the new EC/EAEC draft Regulation of June 1994148 on the protection of the financial interests of the Communities, taken on basis of Article 235 EC and 203 EAEC and articulating prin­ciples appropriate to the development of a Community system of sanctions. Its Article 2 gives a definition of Community fraud at the Community level which aims to apprehend any type of illegal action or omission, intentional or due to negligence, in view of the obli­gations of diligence. As proposed by the study, important principles have been taken up, such as the principle of legality (Article 10), the principle of ‘fraud against the law’ (Ar­ticle 3), the principle of proportionality and the assimilation principle (Article 6). Accord­ing to the principle of culpability, infringements which are not intentional or not due to negligence will just lead to the restitutio in integrum of the losses sustained by the Com­munity (Article 4), except in certain cases where it will still be possible to apply sanctions (Article 4, para. 2). Rules harmonizing the prescription period have also been established in this draft (Article 9). The second initiative regards domestic criminal laws. The Com­mission estimated that only inter-State measures would be appropriate at that level and worked out a draft Convention on the protection of the financial interests of the Com­munities of June 1994, on the basis of Article K 3, para. 2 of the Treaty. Its Article 1 spe­cifically incriminates Community fraud and defines the elements of the infringement, with the effect that Community fraud will be considered to be a criminal infringement which has the same content in every national criminal law. The scope of application of the draft Convention includes attempts to defraud (Article 2). Recommendations by the study foreseeing harmonization measures in the field of criminal procedure have inspired many Articles of the draft Convention (especially as regards rules relating to the extraterritor­iality of criminal law and the prescription period). Lastly, Article 3 establishes the prin­ciple of the liability of corporations, which will institute an important harmonization in that field. 148  Nyr. In order to complete this legal framework, there is also a Proposal broadening the content of the EC/EAEC draft Regulation to the protection of the financial interests under the scope of application of the ECSC Treaty.

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In interpreting the principle of cooperation provided by Article 5 EEC, the ECJ stated in the Amsterdam Bulb case149 that although the Article places Member States under a duty to take all appropriate measures to ensure the fulfilment of obligations created by the institutions of the Community, ‘it allows the various Member States to choose the measures which they consider appropriate, including sanctions which may even be criminal in nature’. Therefore, ‘in the absence of any provision in the Community rules providing for specific sanctions to be imposed on individuals for a failure to observe those rules, the Member States are compe­tent to adopt such sanctions as appear to them to be appropriate’. It follows from the above considerations that the discretion of the Member States to lay down penalties enforcing Community law is a ‘qualified discretion’: that is that they are re­quired to take adequate sanctions to guarantee the effectiveness of the relevant provisions of Community law. The limits of this qualified discretion have been clarified by the ECJ in the Greek maize case.150 Yugoslavian corn had been exported from Greece to Belgium and declared to be Greek, with the effect that no agricultural levy (Community’s own resources) had been col­lected. The Commission required the Greek government to initiate all the criminal or disci­plinary proceedings provided by national law against the perpetrators of the fraud, but Greece failed to do so. The Commission therefore applied to the ECJ for judgment by de­fault. The ECJ recalled that Article 5 EEC requires the Member States to take all measures necessary to guarantee the application and effectiveness of Community law. It then added: ‘For that purpose, whilst the choice of penalties remains within their discretion, they must ensure in particular that infringements of Community law are penalised under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty ef­fective, proportionate and dissuasive’. This case law, later confirmed by the Hansen and the Vandevenne cases,151 thus clearly states that, although Member States are, unless otherwised provided, free to choose between enforcement by administrative, criminal or civil law, they are nevertheless limited by two re­quirements of great importance when they impose penalties for the infringement of provi­sions of Community law. Firstly, they must ensure that the penalties are ‘effective and dissuasive’ and secondly, they must penalise infringements of Community law ‘in the same manner as Case 50/76. ECR (1977) p. 137. Case 68/88, Commission v. Hellenic Republic, ECR (1989) p. 2965; with comment of J.C. Bonichot, ‘Droit Communautaire’, Revue de Science Criminelle (1990) p. 155. 151  Case 326/88, ECR (1990) p. 2911 and case 7/90, ECR (1991) p. 4371. 149  150 



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infringements of national rules of the same kind and importance’. In the eyes of the ECJ, the requirement that the penalty be effective appears more important than the re­quirement of assimilation with the national law, with the effect that it is eventually up to the ECJ to decide whether the national provisions of criminal law enforcing Community law are effective. It means that, for instance, the ECJ might find that the enforcement level of Com­munity law is insufficient, although it corresponds with the enforcement level of national law. In so doing, the ECJ would contribute to harmonize and increase the enforcement level of the Member States.152 According to the Commission, the principles deriving from the Greek maize case ‘apply not only where Community rules make no specific provision for penalties, but also where Community instruments carry provisions dealing with certain consequences of failure to comply with the rules they contain’.153 Of course, neither Article 5 EEC, nor the above conditions oblige the Member States to impose criminal sanctions, but this mechanism may nevertheless cause them to impose criminal liability in sensitive areas such as consumer law, labour law, or environmental pro­tection law. 3.2.1. Penalties which are Effective and Dissuasive According to the case law of the ECJ, ‘effective’ means that the Member States must en­deavour to attain the objectives of the relevant provisions of Community law.154 For instance, in Von Colson,155 relating to the penalization of Directives provisions, the ECJ stated that although Article 189 EEC para. 3 leaves Member States free to choose the ways and means of ensuring that the Directive is implemented, that freedom does not affect the obliga­tion imposed on all the Member States to which the Directive is addressed, to adopt, in their national legal systems, all the measures necessary to ensure that the Directive is ‘fully effec­tive’ and in accordance with the objective which it pursues. There is even an obligation to take interim measures or assess penalties if the full effect of Community law would other­wise be impaired, as underlined in Factortame I,156 a case which astounded public opinion in the United Kingdom and made British lawyers truly aware of the supremacy of Community law. In this case, an established rule of common law under which it is forbidden to take in­terim measures in cases against the Crown (combined with the presumed conformity of na­tional laws with Community law as long as the contrary has not been 152  H. Lensing, ‘The Federalisation of Europe: Towards a Federal System of Criminal Justice’, European Journal of Crime, Criminal Law and Criminal Justice (1993) p. 218. 153  Commission notice concerning the judgment of the ECJ in case 68/88, OJ, 1990, C 147/3, p. 3. 154  See opinion of Advocate-general W. Van Gerven in the Hansen case, op. cit., note 146. 155  Case 14/83, ECR (1984) p. 1839. 156  Case 213/89, ECR (1990) p. 2433.

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decided) prevented from granting interim relief. The ECJ decided that ‘a court which in those circumstances would grant interim relief, if it were not for a rule of national law, is obliged to set aside that rule’. Similarly, in Commission v. Germany,157 the Court ruled that Germany failed to com­ply with Article 5 EEC and the relevant Regulation because a system of national penalties (in this case a fine) should have been introduced to fulfil its obligation under Community law, although Germany pleaded provisions existing in its internal legal system justifying a failure to do so. This requirement can play an important role because of the fact that in the national legal systems, even if the levels of the sanctions are to be considered high enough to act as a deterrent, the practice of the prosecutors or judiciary may strongly impair their effectiveness. As far as the United Kingdom is concerned, for instance, prosecutions for fraud are normally brought on the basis of a summary offence in the Magistrates’ Court where the maximum sentence is imprisonment for a maximum of six months.158 Of course, the criterion of effectiveness is in close relation with the requirement that the penalty be ‘dissuasive’: the penalty must ‘prompt’159 the persons targeted by a Community provision to respect it. The ECJ has already determined in the Von Colson and Harz cases160 what would not be sufficiently dissuasive, namely a national provision limiting the civil lia­bility of the offender to the payment of a purely symbolic amount. Moreover, as ruled in Dekker,161 where a Member State opts for a sanction forming part of the rules on civil lia­bility, any infringement of the Community prohibition suffices in itself to make the person guilty fully liable, and ‘no regard may be had to the grounds of exemption envisaged by na­tional law’, such as to subject the liability to proof of a fault attributable to this person. It seems therefore that the ECJ, in the evaluation of the dissuasive nature of a penalty, is not satisfied with a liability based merely on common law.162 To some extent, those conditions call Member States to provide for criminal penalties, or at the very least punitive administrative sanctions, especially in sensitive areas where the Community legislature expressly left the Member States with the possibility to adopt more stringent measures than those laid down in the relevant Community provisions.163 Such a possibility is indeed envisaged by many Community Directives relating to the protection of consumers (as Case 217/88, ECR (1990) p. 2879. N. Martyn, ‘Community Fraud. An Analysis of the Phenomenon’, in Commission des CE, La protection juridique des intérêts financiers des Communautés européennes’ (Bruxelles 1992). 159  For instance, see in the Hansen case, n° 19 of the judgment. 160  Case 79/83, ECR (1984) p. 1921. 161  Case 117/88, ECR (1990) p. 3941. 162 J. Wouters and P. Wytinck, ‘Het begrip onderneming en de strafrechtelijke aansprakelijkheid van rechtsper­sonen in het Europees gemeenschapsrecht’, Tijdschrift Rechtspersonen en Vennootschappen (1992) p. 163. 163  If this possibility were not expressly provided, the question could arise whether a national law can implement a Community obligation creating a ‘duty to use best endeavours’ by making 157  158 



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Article 15 of Directive 87/102 for the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit),164 and in labour law (as Article 7 of Directive 77/187 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertak­ings, businesses or parts of businesses165). In the field of environmental protection, Article 130 T EEC has an identical general effect by stating that ‘the protective measures adopted in common (…) shall not prevent any Member State from maintaining or introducing more stringent protective measures compatible with this Treaty’.166 Therefore, in these cases, if the relevant Community instruments do not oblige Member States to introduce stringent pro­visions as, for instance, a system of strict criminal liability aimed at ensuring compliance with Community obligations, they neither preclude them from doing so, in the limits estab­lished by the Court (as long as the principle nulla poena sine culpa is not enforced by a Regulation). For instance, in the Vandevenne case, the ECJ ruled that although the relevant Community provision (Article 15 of Regulation 3820/85) creates an obligation to use best endeavours, it remains permissible for Member States to provide for strict criminal liability on the part of the undertaking concerned. 3.2.2. Penalization in a Way Similar to the Enforcement of National Provisions Regarding the criminal penalties, the duty to enforce in a way similar to the enforcement of national provisions means nothing else than the application of the ‘assimilation principle’. If the corresponding national provision constitutes a criminal offence, the use of criminal sanc­tions seems inevitable. If the infringements are not similar, the Member States are then free to choose the kind of sanction on the condition however that this latter is effective and dis­suasive. This may imply in some cases the use of criminal sanctions, as was previously dem­onstrated. As far as criminal prosecutions are concerned, this requirement covers different criteria which have been developed in the case law of the ECJ as it pertains to the recovery of sums wrongly paid under Community law. The ECJ summarised them in the Fewarda and Fromme cases.167 Firstly, the application of national law must not adversely affect the scope or impair the effectiveness of Community law by making the recovery of sums wrongly paid impossible it a ‘duty as to the result to be achieved’ on national level, without infringe the proportionality principle. See ibid. and case 7/90, Vandevenne, ECR (1991) p. 4371. 164  OJ, 1987, L 42. 165  OJ, 1977, L 61. 166  Compare with case 169/89, Gourmetterie, ECR (1990) p. 2143. 167  Case 265/78, ECR (1980) p. 617 and case 54/81, ECR (1982) p. 1449. See also case 205-215/82, Milchkontor, ECR (1983) p. 2633.

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in practice. Nor may it make the recovery of such sums subject to conditions or detailed rules less favourable than those which apply to similar procedures concerning inter­nal matters. Finally, in such matters, the national authorities must proceed with the same care as they exercise in implementing corresponding national laws so as not to impair, in any way, the effectiveness of Community law. The ECJ has strongly formulated this last criterion in the Greek maize case, by stating that ‘the national authorities must proceed, with respect to infringements of Community law, with the same diligence as that which they bring to bear in implementing corresponding national laws’. This may thus influence criminal procedure when, for instance, a Member State by failing to prosecute in particular circumstances, would infringe Article 5 EEC. In practice, however, it will be difficult for the Member States to prove that they fulfil this requirement, because of the lack of accurate data in that area. 3.2.3. Consequences of the Non-fulfilment of the Requirements by the National Penalties A complex problem arises when the internal penalties issued in order to implement the rele­vant Community provisions are not sufficient with respect to the aforementioned require­ments. Is a national court competent to adapt these requirements to those of the Community by, for instance, increasing their severity? The ECJ held, in the cases of Directives which lack direct effect, that Article 5 EEC im­posed an obligation on the part of the national courts to ensure the effectiveness of EC law, in particular by interpreting national law in the light of the wording and purposes of Direc­tives. Does it mean that this case law (which creates problems primarily for the British courts which are required to confront the compatibility of their practice in the field of Community law with ‘orthodox sovereignty theory’168) also requires the national judge to apply more stringent sanctions if necessary? The answer to be given is obviously negative. Indeed, as it has been underlined in Kolpinghuis Nijmegen,169 the obligation to interpret national law in conformity with Community law is limited by the general principles which are part of Com­munity law such as those of legal certainty and non-retroactivity in the area of criminal law. If the national judge increased the severity of the national penalties in order to meet the re­quirements laid down by the ECJ, it would clearly infringe the Community principle of nul­lum crimen sine lege, nulla poena sine lege.170

168  G. De Burca, ‘Giving Effect to European Community Directives’, Modern Law Review (1992) p. 215. 169  Case 80/86, ECR (1987) p. 3969. 170  J. Wouters and P. Wytinck, op. cit., note 162, p. 163.



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The recent Francovich case171 could be a watershed. It expresses the principle that the Member States are obliged to compensate individuals for loss and damage suffered due to a breach of Community law (including the failure to take all the measures necessary to achieve the result prescribed by a Directive) for which they can be held responsible. This obligation is again based on Article 5 EEC which requires Member States to nullify the unlawful conse­quences of a breach of Community law. The conditions for State liability, when they failed to implement Directives, are, first, that ‘the result prescribed by the Directive should entail the grant of rights to individuals’, secondly ‘that it should be possible to identify the content of those rights on the basis of the provisions of the Directive’ and, thirdly, ‘the existence of a causal link between the breach of the State’s obligation and the loss and damage suffered by the injured parties’. Thus, the question may arise whether the fact that a Member State did not (or insufficiently) submit to the penalties required by Community provisions granting rights to in­dividuals would also constitute a breach of Community law in the sense of Francovich.172 Of course, the Commission could also make use of Article 169 EEC if it considers that a Member State has not (or incorrectly) submitted to the penalties required by the relevant Community provisions. 3.3. With Regard to Rules of Criminal Procedure Apart from the influence of the ‘assimilation principle’, the extension effect of Community law on criminal procedure stems mainly from the obligation to respect the fundamental rights guaranteed by the Treaties and enunciated by the ECJ as being part of Community law.173 The ECJ ensures their respect by searching for a convergence of the solutions adopted by the national legislations and then basing its case law upon its findings. This convergence occurs at the maximum standard level,174 in other words, it draws from the most developed national legislations. Consequently, less developed legislation will have to take account of this higher standard in order to comply with the level required by the ECJ.

Joined cases 6/90 and 9/90, ECR (1991), p. 5357. J. Wouters and P. Wytinck, op. cit., note 162, p. 163. 173  For an enumeration of these, see J. Biancarelli, ‘Les principes généraux du droit communautaire applicables en matière pénale’, Revue de Science Criminelle (1987) p. 131; M. Delmas-Marty and P. Truche, ‘Uniformité ou compatibilité des systèmes juridiques nationaux: des règles identiques aux principes directeurs’, in M. Delmas-Marty and alii, Quelle politique pénale pour l’Europe? (Paris 1993) pp. 321–334 and H.F.M. Crombag, ‘On the Europeanisation of Criminal Procedure’, in The Common Law of Europe and the Future of Legal Education (Deventer 1992) pp. 397–414. 174  F. De Angelis, ‘L’effet de convergence du droit communautaire sur la procédure pénale des Etats membres’, in M. Delmas-Marty, Procès pénal et droits de l’homme (Paris 1992) pp. 285–290. 171  172 

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As regards the rights of defence (in the sense of Article 6 ECHR), the Court held in Solvay v. Commission175 that they must be observed ‘not only in administrative procedures which may lead to the imposition of penalties, but also during preliminary inquiry procedures’. Consequently, the Member States are required to eliminate differences in the rights of the defence that occur between the preliminary investigation procedures and the procedure which follows the communication of the grounds of complaint. The protection of the rights of the defence has also followed from Conventions between Member States outside the Treaties. For instance, in Rinkau,176 the Court held that the right to be defended without ap­pearing in person, granted by Article II of the Protocol annexed to the Convention of 27 Sep­tember 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, ‘applies in all criminal proceedings concerning offences which were not intention­ally committed, in which the accused’s liability in civil law, arising from the elements of the offence for which he is being prosecuted, is in question or on which such liability might sub­sequently be based’. The principle of non-discrimination have also had a important influence in the extension of the rules of criminal procedure. It indeed emerges from the Pecastaing and Santillo cases177 that all the Member States are obliged ‘to make available to any national of a Mem­ber State of the Community (…) the same legal remedies as are available to nationals in re­spect of acts of the administration. A Member State cannot, without being in breach of that duty, make the right of appeal (…) conditional on particular requirements as to form or proce­dure which are less favourable than those pertaining to remedies available to nationals in respect of acts of the administration’, including suspension of the acts appealed against.178 Consequently, each Member State is required to institute identical procedural guarantees, at the administrative or judicial level, protecting all Community nationals. For instance, as ruled in Cowan,179 a Community citizen who is the victim of a physical attack while on holi­day in another Member State qualifies for compensation from a public fund for victims of as­sault and battery, because citizens of other Member States must enjoy the same amount of protection against physical violence as those of the Member State involved. Lastly, a principle which might operate in the area of criminal procedure is that of mutual recognition, under which rules from an another Member Case 27/88, ECR (1989) p. 3355. Case 157/80, ECR (1981) p. 1391. 177  Cases 98/79, ECR (1980) p. 691 and 131/79, ECR (1980) p. 1600. 178  Connection with the remedies open to a person subject to deportation a court recommendation to deport may constitute ‘an opinion of a competent authority’ required by the Directive 64/221 and remain valid, provided that this ‘opinion’ is sufficiently proximate to the deportation order and the social danger posed by the defendant is assessed at that time. 179  Case 186/87, ECR (1989) p. 195. 175  176 



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State giving protection equal to that of the national rule, must be recognized as equivalent. This could be important especially in the procedural rules relating to the means of proof, every Member State having to recognize different methods used in other Member States insofar as those methods do conform to equi­valent legislation.180

4. Community Competence in the Area of Criminal Law? While it results clearly from practice that the criminal laws of the Member States are strongly influenced by Community law, the question remains whether the Community does have competence in the area of criminal law. Indeed, there is nothing in the EEC Treaty or its amendments which excludes criminal law from the ambit of Community law. The only area of law expressly excluded is that relating to systems of property ownership.181 It is conse­quently false to declare, as it has been many times in the past, that in so far as provisions of Community law relate to criminal law, they are to be considered outside the Community competence. In order to answer this question, a distinction has to be made between the com­petence to define new criminal offences and that to provide for criminal penalties. It is evident that in principle, in the absence of specific provisions in the Treaties to that ef­fect, the Community institutions do not have the power to define new offences or to ‘incrimi­nate’, although they can reach the same result via the ‘assimilation principle’ or by providing for specific sanctions to be applied by the Member States (like in the CAP Regulations). In­deed, in these cases, even though Community law needs national implementation to be en­forced, it nevertheless leads to the criminalization of behaviour which would otherwise have avoided criminal sanctions. With regard to the community competence to impose criminal penalties, important devel­opments have recently taken place. Not long ago, some Member States did not hesitate to argue before the ECJ that, although they accepted the conditions put forth by the Greek maize case, they were exclusively competent to impose penalties. It was a matter for national law because a country’s policy in the field of criminal law is bound up with its national cul­ture and ‘it is therefore crucial for the evolution of society as a whole that the possibility for a Member State to pursue an independent policy in that area should not be completely nullified’.182 This reluctance to recognize any criminal competence of the Community was not­ably illustrated during the adoption of the Directive on money laundering. The Commission, in its original proposal for a Directive on money laundering, 180  181  182 

H. Sevenster, ‘Criminal Law and EC Law’, Common Market Law Review (1992) p. 29. Article 222 EEC. Case 326/88, Hansen, ECR (1990) p. 2911.

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considered that the best way to assure an effective compliance with the Directive was to impose an express obligation on the Member States to criminalize this activity, though ‘according to their national legislation’.183 This requirement to adopt criminal provisions (which was approved by the European Parlia­ment and the ESC184) met considerable opposition from the Member States. Directives, or so the argument goes, are supposed to leave a certain margin of discretion to the Member States as to their implementation. Insistence on criminal sanctions would simply eliminate any dis­cretion. However, asked whether the Community did have competence to impose an obliga­tion to criminalize, the legal services both of the Commission and of the Council of Ministers have advised that ‘the Community is competent to impose obligations on Member States to carry out penal action, if it deemed that this is necessary to obtain the full effect of the measures which it adopted’.185 They quoted as precedent in this matter Article 11 C of Regulation 2241/87 on control measures in the fisheries sector which provides for Member States to take ‘penal or adminis­trative action’,186 the validity of which was upheld by the ECJ.187 Nonetheless, a com­promise was finally reached in order not to jeopardize the adoption of the Directive: the Commission dropped the requirement to adopt criminal sanctions and the Member States have agreed to make an ‘Intergovernmental Statement’ ensuring that their legislation would make money laundering a criminal offence. But recently, the question whether Member States can be obliged to sanction certain in­fringements through criminal proceedings has only been truly addressed by the ECJ in its judgment Germany v. Commission of the European Communities.188 In this case, the Ger­man Government contended that neither the Council nor the Commission had the power to impose the sanction of ‘exclusion’ (exclusion for a certain period from future benefits) and that the Council was not able to delegate to the Commission a power to require the imposi­tion of ‘exclusion’ or ‘surcharge’ (payment of an amount which is additional to the refund of the benefit already paid with interest). These sanctions, imposed by the Community but in­tended to be applied by the Member States, are, according to the Commission, of an ‘admin­istrative’ nature. It could be argued that this statement is a ‘legal fiction’, a ‘spoonful of sugar to help the medicine go down’ and that those sanctions are OJ, 1990, C 106/6, Article 2. OJ, 1990, C 324/264 and C 332/96. 185  See generally the written evidence of Mr G. Fitchew (DG XV), supplied to the House of Lords Select Committee on the European Communities, Session 1990–1991 (4 December 1990), First Report on Money Laundering, H.L., at 28–30. 186  OJ 1987, L207 and OJ, 1988, L.306 187  Case 9/89, Spain v. Council, ECR (1990) p. 1383. Spain argued, without success, the territoriality principle in order to protect its competence in criminal matters. 188  Case 240/90, ECR (1992) p. 5383. 183  184 



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of a de facto criminal nature be­cause, like those in competition law, they are proportionate to the gravity of the fault and not to that of the damage incurred. They have punitive aims, their unfavourable consequences going far beyond the mere refund of the benefit unduly paid (should it be with interest). Nonetheless, they can be considered to be administrative as regards the ‘organic’ criterion. They are indeed handed down by an administrative authority in order to protect an administrative function (the management of the Community budget). But, even if it was the case, in the summa divisio between ‘sanctions which affect only recovery of the damage’ and ‘puni­tive sanctions’, they are clearly in the latter category, because of their aim of general preven­tion and punitive contents.189 This has clearly been confirmed by the ECJ in its judgment. The Court has in fact explicitly recognized the competence of the Community to establish sanctions, such as the ones discussed above, which ‘go beyond the mere restitution of the benefit unduly received’ and which consequently, according to the Court, have a ‘punitive’ nature. Moreover, it results from this judgment that a general power delegated by the Council to the Commission to adopt detailed rules of implementation is apt to include the imposition of such punitive sanctions as may be necessary to ensure the effectiveness of the rules laid down. In the final analysis, it seems clear that these new developments, in particular the judgment of the ECJ which allows the Community to require ‘administrative’ sanctions that are essen­tially of a criminal nature, confirm the growing power of the Community in some areas of criminal law. It is more than likely that the competence in the field of criminal law shall be affirmed in cases where the obligation to implement Community measures by criminal provi­sions will clearly serve to enforce the norms rooted in Community law. It is now evident that ‘it is not per se outside the competence of the Community to engage in the harmonization of issues of criminal law for purposes which come within the wider objectives of the Trea­ties’.190 This could have important consequences, insofar as the Community’s ‘administrative­ punitive’ sanction system could be extended, in the future, to new fields such as consumer law, labour law191 or environmental protection law, as is already suggested by several draft Regula­tions, such as the draft Regulation on environmental risk of chemical substances and the draft Regulation on shipments of waste.192

189  G. Grasso, ‘Nouvelles perspectives en matière de sanctions communautaires’, Revue de Science Criminelle (1993) p. 265. 190  Memorandum by R. Smith and alii, supplied to the House of Lords Select Committee on the European Communities, Session 1990–1991, First Report on Money Laundering, H.L., 31. 191  P. Lafarge and M. Gendrel, ‘Le droit pénal communautaire du travail, vue de l’esprit ou réalité juridique?’, in Mélanges offerts à Georges Levasseur (Litec 1992) p. 147. 192  OJ, 1990, C 276/1 and OJ, 1990, C 289/9. See also other examples cited by H. Sevenster, ‘Criminal Law and EC Law’, Common Market Law Review (1992) p. 29.

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The legal basis for harmonization in the area of criminal law in light of the objectives of the Treaties may be put forward. In the EEC Treaty, there is Article 43 on the CAP, Articles 100 and 100 A on the approximation of laws as they directly affect the functioning of the Common Market and the Internal Market, Article 101 (although its use is unclear) and Ar­ticle 172 (the only Article outside the field of competition law that mentions sanctions) which the European Parliament interprets as giving to the Council the general power to im­pose penalties including criminal ones. There is also Article 235 (in combination with Article 5) insofar as ‘the Treaty has not provided for the necessary powers’ (to require criminal sanctions), that Community measures requiring criminal sanctions are ‘necessary to attain one of the objectives of the Community’ (namely those of Article 2) and that the cooper­ation principle of Article 5 must be precised by Community measures requiring the adoption of criminal sanctions which (following the same Article) ‘ensure fulfilment’ of Community law.193 Moreover, the coordinated interpretation of Articles 100 A and 209 A (para. 2) (inserted by the Maastricht Treaty) seems to give to the Community the power to harmonise the criminal law of the Member States in the area of the protection of its financial interests.194 In the Treaty on European Union, Article F (3), by stating that ‘the Union shall provide itself with the means necessary to attain its objectives and carry through its policies’, could also be a basis for the requirement of criminal sanctions. Lastly, the case law of the ECJ, especially the Greek maize and the Germany v. Commission cases, could also back up these legal basis.195 As far as the United Kingdom is concerned, one could establish the competence of the Community in imposing criminal sanctions by examining the way the United Kingdom’s im­plementing Act deals with criminal penalties. Indeed, Schedule 2 of the 1972 Act imposes limitations on the matters which may be introduced by secondary Community law to imple­ment Community obligations.196 One of these limitations197 is that there is no power’ to cre­ate any new criminal offence punishable with imprisonment for more than two years or punishable on summary conviction with imprisonment for more than three months or with a fine of more than 400 pounds (if not calculated on a daily basis) or with a fine of more than 5 pounds a day’. This simply means that such a provision may not be enacted by secondary Community legislation and, consequently, needs primary Community legislation. Therefore, it can be argued 193  C. Hagueneau, ‘Sanctions pénales destinées à assurer le respect du droit communautaire’, Revue du Marché Commun (1993) p. 351. 194  M. Delmas-Marty, op. cit., note 145, p. 170. 195  See also the opinions of the Advocates-general in the Internationale Handelsgesellschaft and Amsterdam Bulb cases, where it seems that they consider that the Community has the power to establish criminal sanctions. 196  Section 2(2) of the Act. 197  Schedule 2, para, I (I) d.



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that ‘this provision expressly recognizes that the implementation of Com­munity obligations may require criminal sanctions and simply delimits the circumstances in which primary and secondary legislation shall be used’.198 The alleged lack of competence of the Community in the area of criminal law is due more to political than juridical concerns. In the Maastricht Treaty, this problem has been crystal­lized by its Title VI (Provisions on cooperation in the field of justice and home affairs), where Article K1 states that in the area of criminal law, ‘without prejudice to the powers of the European Community’, Member States will regard it as a matter of ‘common interest’. Thus, on the one hand, it is confirmed that the cooperation in the field of criminal law is a matter of intergovernmental relations because the Member States have to consider it as a matter of ‘common interest’ and not as a matter of ‘Community interest’, except of course the measure to counter Community fraud (Article 209 A). But on the other hand, the wording of the sentence ‘without prejudice to the powers of the Community’ seems to confirm the al­ready existing possibility for the Community to exert its competence in the area of criminal law. The question is hence still open. The meeting point between the two conflicting con­siderations will be decided by politicians, not by lawyers. However, a Resolution of the Council (29/30 November 1993)199 indicates that the political opinion is more and more in favour of a certain recognition of Community competence in the area of criminal law. In­deed, this Resolution considers that the study between criminal law and Community law must be pursued, in light of the ECJ’s judgment in the case Germany v. Commission of the European Communities and the study of the Commission on administrative sanctions, not­ably with regard to the measures which should be taken in order to ensure a greater compatibility between the legal provisions of the Member States in the battle against Community fraud. The European Parliament went even further. Its Resolution of 16 December 1993 on the fight against international fraud200 asked the Commission to present in June 1994 a proposal outlining preliminary measures for a harmonization of the criminal rules of the Member States in order to protect the financial interests of the Community. As regards economic criminality in general, the Parliament deems it necessary to establish a standard definition for similar offences throughout the Member States of the Community. The Commission responded with the draft Regulation and Convention on the protection of the financial interests of June 1994.

198  199  200 

R. Smith and alii, op. cit., note 190, p. 31. 10550/93 (Press 209). A3-0346/93 (Bontempi Report).

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5. Conclusion There can be no doubt that Community law will continue to exert a growing influence on the criminal laws of the Member States. On the one hand, where Community law tends to limit domestic provisions, it is obvious that the very principle of supremacy of Community law will continue to apply, invalidating every incompatible domestic provision. On the other hand, Community law will also increasingly contribute to the reinforcement of the criminal systems. Indeed, even if the Community has no explicit competences in the area of criminal law, the means to enforce its policy by criminal provisions are not lacking. In all likelihood, the ‘assimilation principle’ will therefore play an important role. There is also the case law of the ECJ which raises the standards of the effective and deterrent internal enforcement of Community law. In this regard, the ECJ, since the ratification of the Maastricht Treaty, has the power to impose financial penalties on the Member States for persistent breaches of their obligations. As a result of these opposing influences, as well the Community legislature as well as the ECJ contribute to establish rules and principles which lead de facto to a convergence of the national criminal laws. The present situation is nevertheless ambiguous, with the undesirable effect that the’ relation between Community law and criminal law was developed on a case by case basis, mainly in the form of the judgments of the ECJ. The competence of the Community to engage in the harmonization (of certain areas) of criminal law, should be affirmed. The legal basis for such a process exists. It is a question of political will. The Community framework, by having at its disposal the necessary directly binding legal measures, is the only means by which a harmonization of criminal law could be really designed and implemented. Such a harmonization, at least of some aspects of the domestic criminal law (especially economic criminal law), is not only possible, but is even necessary to avoid the current distortions of competition resulting from the discrepancies between the national economic criminal laws, to fight against Community fraud and to guarantee the uniform application of Community law. As it has been made obvious in the study of the Commission on administrative sanctions, the Member States share the same basic principles in the area of criminal law. This common basis is an indispensable tool shedding light on the legal problems that the new European Union has to face in the area of criminal law and should therefore be incorporated in increasingly harmonized legislation at Community level. This process has already begun with the recent initiatives of the Council and the Commission. It can only continue.

The Treaty Establishing a Constitution for Europe and Challenges for Criminal Law at the Commencement of 21st Century Maria Kaiafa-Gbandi Professor at Aristotle University of Thessaloniki, Greece

1. Criminal Law in International Environment and Legal Civilization The commencement of 21st century found criminal law being tested by unprecedented challenges to the extent that it was called to function more and more intensely out and beyond national borders1 and thus redefine its own identity as a branch of law primarily related to the exertion of state power. This divergence of criminal law’s function in the international framework, which greatly surpasses now a simple transnational cooperation based on international conventions2 and was recorded by the foundation of the International Criminal Court (ICC) as well as the constant developments within European Union (EU), is evident that will have very significant consequences for the legal civilization of our century. This is the case not only because the aforementioned international organizations, which are interested in penal repression, are composed of numerous states with distinct legal traditions, but mainly because the procedure itself of criminal law’s internationalization is capable of influencing decisively

1  See in the Greek bibliography: Enosi Ellinon Poinikologon, To Poiniko Dikaio sto Neo Diethnes Perivallon (Athens-Komotini 2001); Manoledakis and Prittwitz, eds., Diethnopoiisi tou Poinikou Dikaiou (Athens-Thessaloniki 2003); Manoledakis, ed., Skepseis gia to Mellon tou Poinikou Dikaiou (Athens-Komotini, 2000); Manoledakis, ‘Pagkosmiopoiisi’ kai Poiniko Dikaio, in Praktika tou 2ou Synedriou ton Ellinikon Nomikon Sxolon, To Dikaio mprosta stin Proklisi tis Pagkosmiopoiisis (Athens-Thessaloniki 2002), pp. 279 et sub. 2  This loose form of penal law’s internationalization, where the sovereign states bind themselves by signing international agreements and promote certain regulations in order to approximate their laws and cooperate with each other in various areas, is found at the Council of Europe as well as the United Nations level.

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the characteristics of criminal law3 and consequently the identity of the legal civilization that it expresses.4 If I attempted to condense into one phrase the legal civilization’s substance that the evolution of criminal law has managed to reach until now particularly in Europe, though I am aware of the dangers that this might entail, I would say that this substance consists in the establishment of safeguards for keeping the balance between the protection of legal goods and the guarantee of people’s freedom through the Constitutions of member states as well as through the European Convention on Human Rights (ECHR) in order to be able to control all the observed deviances.5 A first glance at areas of international environment where criminal law was called to function reveals, however, that precisely this system of safeguards considerably recedes, if not, is utterly absent. Characteristic examples hereto are not only the divergences from basic criminal law principles that characterized the Rome Statute of ICC,6 but also the lack of the fundamental rights’ institutional protection within the EU framework, although the EU has already organs whose action may infringe upon people’s rights (i.e.Europol).7 Hence, the challenges for criminal law, which is now called to operate beyond the national environment, are important and related primarily to the fact that when criminal law comes out of the national borders in order to repress criminality more effectively,8 is not equipped with the protective mechanisms for people’s liberties that states ensure. In that way we could argue that the contemporary international function of criminal law presents an initial plus of the punishment element, since its logic of existence is devoted to the more effective international or transnational penal repression, and this is combined with an additional plus 3  See for this influence in the frame of the establishment of the ICC Kaiafa-Gbandi, ‘Oi Genikes Arxes tou Poinikou Dikaiou sto Katastatiko tou ICC-Pros ena Dikaiokratoumeno Poiniko Dikaio ton Ethnon’, in Manoledakis and Prittwitz eds., op. cit., pp. 114 et sub. 4  About the interrelation between criminal law, political power and civilization see Manoledakis, ‘Pagkosmiopoiisi’ kai Poiniko Dikaio, loc. cit., pp. 279–280. 5  See the analysis of Manoledakis, To ennomo agatho os vasiki ennoia tou poinikou dikaiou (Thessaloniki, 1998), pp. 12 et sub., 49 et sub. For the twofold character of criminal law (punitive and liberal) and the constitutional entrenchment of its liberal principles see also P.-A. Albrecht, ‘Europäischer Strafrechtsraum: Ein Albtraum’, 37 ZRP 2004, pp. 1–3. For the European legal civilization in general see Stamatis, ‘Europaiki Oloklirosi kai Nomikos Politismos’, H Epoxi, 15.6.2003, p. 12. 6  Kaiafa-Gbandi, loc. cit., pp. 120 et sub. 7  For the extremely broad collection and processing of personal data by Europol and the serious problems regarding the citizens’ insufficient protection that this causes, Kaiafa-Gbandi, To poiniko dikaio stin EE (Athens-Thessaloniki 2003), pp. 187 et sub. 8  See the interesting counterpoint of Manoledakis, ‘H Nea Diethnopoiisi tou Poinikou Dikaiou kai o Kindynos Ypovathmisis tou Nomikou mas Politismou’, in Manoledakis, ed., Skepseis gia to Mellon tou Poinikou Dikaiou, op. cit., pp. 11 and 30 et sub. regarding criminal law’s internationalization through the ECHR during the second half of the last century and the modern steps of its internationalization now.



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of deficits of the liberal element that in parallel accompanies criminal law as a measure of people’s freedom.9 The fact that I chose to approach these challenges on the basis of the Treaty establishing a Constitution for Europe10 becomes easily perceivable. Its nodal importance for Europe’s identity and legal civilization, the immediacy with which it appertains to citizens and the changes that will bring even if it is not ratified by the member states,11 constitute the obvious reasons. Nonetheless, I have to state that my choice is underpinned also by the fact that particularly in the EU there exists the most in-depth form of internationalized criminal law, even though it concerns a smaller number of states than those participating under the auspices of the Council of Europe or the United Nations. The EU as a supranational organization, which may even acquire a legal entity,12 has determined its role in the area of criminal law through its founding Treaties13 and consequently establishes institutional provisions in this area permanently, while on the other hand, it possesses the possibility of obliging the member states flexibly at least for the outcome of the promoted provisions.14 So one can understand that the form criminal law has already shaped or will also shape in the future in view of the EU’s interventions is decisive, constantly renewing and has an ambit that can extend even beyond its 25 member states, since the EU can enter into international agreements with third parties-states in the area of criminal law,15 as we are already aware of the agreements signed with the US regarding the issues of extradition and judicial assistance.16 Thus the dynamic influence, which the EU will exert on the legal civilization that the criminal law of the 21st century will express, is manifest. In order to elucidate the new legal frame that the Constitutional Treaty forms for criminal law and its importance, this article first of all presents the basic 9  Regarding the antitheses of the procedure of law and human rights’ globalization see DelmasMarty, ‘H Pagkosmiopoiisi tou Dikaiou. Eukairies kai Kindunoi’, Doiikitiki Dikaiosyni (2000), pp. 1325 et sub. See also Anagnostopoulou, Apo to Ethniko Poiniko Dikaio sto Dikaio ton Ethnon, in Enosi Ellinon Poinikologon, op. cit., pp. 45 et sub. and A. Klip, ‘The Decrease of Protection under Human Rights Treaties in International Criminal Law’, 68 Revue Internationale de Droit Pénal (1997), pp. 291 et sub., 309–310. 10  For reasons of brevity it will hereinafter be cited as Constitutional Treaty. For the use of the term ‘constitution’ see reservations of Manitakis, ‘To “Syntagma” tis Europis Metaxy Ethnikis kai Europaikis Kuriarxias’, in Manitakis and Papadopoulou eds., H Prooptiki enos Syntagmatos gia tin Europi (Athens-Thessaloniki 2003), pp. 78 et sub.; Tsatsos, ‘Skepseis gia to Syntagmatiko Provlima tis Europaikis Enosis’, in Manitakis and Papadopoulos, eds., ibid., pp. 15–16. 11  Art. IV-447 states that in order that the Constitutional Treaty is entered into force it must first be ratified by the member-states ‘in accordance with their respective constitutional requirements’. 12  See art. Ι-7 of the Constitutional Treaty. 13  See arts. 29 TEU et sub. 14  Collate arts. 34§2(b) and §2(d) TEU. 15  See arts. 38 and 24 TEU. 16  Kaiafa-Gbandi, op. cit., pp. 239 et sub.

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characteristics of criminal law’s contemporary development within the EU (part 2) and then examines the new EU structure, the identity of its competences and its leading aim in the field of criminal matters (part 3). On this basis it analyzes the content of the EU competences in the area of criminal law and their expected influence on the national penal systems (part 4) devoting special attention to the protection of fundamental rights (part 5), while its concluding remarks define the basic prerequisites for criminal law’s future development in the EU (part 6).

2. Basic Characteristics of the Contemporary Development of Criminal Law within the EU In order to make the assessment of the Treaty provisions concerning criminal law feasible, the current data of criminal law’s development within the EU must be clear. Criminal law gained importance for the EU when the primarily economic organization of the European Economic Communities was stabilized and unfolded other areas of common action too. The desire for the greatest possible effectiveness of the common market and free movement of goods and persons as well as the desire for the protection of its economic interests led the EU slowly to seek to use criminal law as the most effective means for the fulfillment of its goals. The Treaty of Amsterdam added to these goals, as another particularly significant aim, the guarantee of a common area of freedom, security and justice where it was deemed that criminal law could contribute conclusively. However, insofar as the EU does not possess the characteristics of a state entity, this aim could only be accomplished through its cooperation with the member states. Consequently, the development of criminal law within the EU framework is co-determined by this relation.17 Running through the basic characteristics of criminal law, which is shaped at present by the EU intervention,18 one should focus on three main points: – The first characteristic concerns the deep incision into the state sovereignty and the deterioration of criminal law’s democratic legitimization. The EU intervention for the determination of provisions in the area of criminal law leads to a significant relativity of state sovereignty, which surpasses the foreseeable by the TEU (Treaty establishing the European Union) dimensions. This is confirmed especially through the recent years practice, on

Kaiafa-Gbandi, op. cit., pp. 8 et sub. See the criticism of W. Hassemer, ‘Ein Strafrecht für Europa’, in F. Zieschang, E. Hilgendorf and K. Laubenthal, eds., Strafrecht und Kriminalität in Europa, pp. 19 et sub.; J. Vogel, ‘Stand und Tendenzen der Harmonisierung des materiellen Strafrechts in der Europäischen Union’, ibid., pp. 54–56; Th. Weigend, ‘Mindestanforderungen an ein europaweit geltendes harmonisiertes Strafrecht’, ibid., pp. 58, 80. 17  18 



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the one hand by the EU excession of powers19 and on the other hand by the absolute marginalization of the conventions as a legal instrument of the Third Pillar,20 since this instrument is much more advantageous to the sovereign states than the EU. The conventions have been long replaced by framework decisions through which the EU achieves its goals much more effectively. This is the case because the framework decisions are binding for the states as far as their outcome is concerned, while in practice their extremely detailed character leaves little room for member states to act independently.21 Hence, it becomes evident that in the area of transnational cooperation, where one would argue that state sovereignty is rather confirmed than doubted, the specific formation of the relationship between the EU and member states ends up practically in a kind of EU dominion.22 Moreover in order to obtain a clear idea, we should remember that the people of Europe do not have the right of co-decision for provisions referring to criminal matters enacted within the EU, because the European Parliament has merely a consulting role for issues related to the Third Pillar (art. 39 TEU). In this way at the level of the Union’s law23 not only the meaning of state sovereignty becomes decisively relative, but also the slowly emerging dominance of Europe24 is disengaged from its attachment to the people 19  For relevant examples see Kaiafa-Gbandi, op. cit., pp. 198 et sub., 251 et sub.; Tsolka, Europaiko Entalma Syllipsis, 52 Poinika Chronika (2002), p. 107. 20  If we examine quickly the legal instruments which were used during the last years in the field of criminal matters (TEU-Title VI), we will easily find out that practically no conventions foreseen by art. 34§2(d) TEU are established anymore. 21  See Spinellis, ‘Harmonization and Harmonizing Measures in Criminal Law: Objections to Harmonization and Future Perspectives’, in Klip and van der Wilt eds., Harmonization and Harmonizing Measures in Criminal Law, p. 90. This tactic is also known by the directives issued (see Kaiafa-Gbandi, op. cit., pp. 283 and fn. 11; Μusil, ‘Umfang und Grenzen europäischer Rechtssetzungsbefugnisse im Bereich des Strafrechts nach dem Vertrag von Amsterdam’, 20 NStZ (2000), p. 70) and although it operates contrary to the principle of proportionality it has not been scrutinized by the European Court of Justice (see Stagkou and Sachpekidou, Dikaio ton Europaikon Koinotiton kai tis Europaikis Enosis (Thessaloniki 2000), p. 209). 22  We should not ignore at this point, the responsibility of member states which do not assume their role in order to prevent similar EU excessions. 23  Things are not very different at the level of Community law, i.e., the First Pillar, where it is attempted to subsume the penal protection of the EU economic interests in particular. See Zieschang, ‘Chancen und Risiken der Europäisierung des Strafrechts’, 113 ZStW (2001), p. 261. It is also useful to remember the Commission’s proposal for a directive concerning the penal protection of EU economic interests within the context of the currently enforced Treaties (COM 2001, 272 and Kaiafa-Gbandi, op. cit., pp. 277 et sub.), although no penal competence has been recognized to the European Community until now. See critically the issue of the Community’s penal competence under the prism of the Community’s democratic legitimation, Prittwitz, ‘Nachgeholte Prolegomena zu einem künftigen Corpus Juris Criminalis für Europa’, 113 ZStW (2001),pp. 790–791. 24  Regarding the relation of European fulfillment and state sovereignty see Manitakis, ‘Ekxorisi Armodiotiton stin EE kai i Epifylaxi Kyriarxias kata to Arthro 28§2 kai 3 Synt.’, ΕΕΕD (2003),

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of Europe, a fact that in turn causes a notable deficit of democratic legitimization of the produced provisions.25 On the EU level the enactment of provisions referring to criminal matters is very closely related to a European, primarily executive power, the European Council, the aims of which it serves.26 However, for a European criminal law founded on the principle of the rule of law, this fact constitutes a non-acceptable phenomenon. – The second characteristic feature of criminal law’s development within the EU is related to the content of the produced provisions. Here, as well as in other internationalized environments of criminal law, a law of security27 is mainly produced. Nevertheless, the EU’s additional singularity lies in the fact that criminal law’s principal orientation towards security has found in the Union institutional recognition within its founding Treaty (arts. 2 and 29 TEU).28 Hence, this orientation becomes an unfaltering and permanent aim with a broader scope that generally facilitates the reversal of criminal law’s basic principles, i.e., an aim which is called to serve every enactment of rules concerning criminal law and not merely those related to organized crime or terrorism. This becomes more easily perceivable if one combines the institutionally promoted aim of security with the previous inference showing that the enactment of criminal law related rules in the EU is tightly conjoined with the executive power, which can then use criminal law as a means for implementing its policies without any difficulty. – Lastly, the third cardinal characteristic is associated with the protection of people’s fundamental rights. To be more succinct, while one would expect that the EU intervention for the enhanced protection of legal goods within its framework would have beneficial effects, this intervention was practically accompanied by a severe deconstruction of the protection of the people’s fundamental rights that can be observed at various levels.29 More pp. 742, 768 et sub., where it is argued that any state sovereignty reservations (art. 28§3 of Greek Constitution) are the foundation stones of judicial scrutiny in matters of ‘constitutionality’. 25  Some academics support the view that these phenomena constitute the ridicule of political democracy. Stamatis, loc. sit., p. 13. 26  Collate P.-A. Albrecht, ‘Prostasia tis Eleytherias: Kathikon tis Europaikis Exelixis tou Poinikou Dikaiou’, in Manoledakis and Prittwitz eds., op. cit., pp. 210 et sub.; Lüderssen, ‘Europaiki Enopoiisi tou Poinikou Dikaiou kai Kivernitiki Dikaiothesia’, in Manoledakis and Prittwitz eds., ibid, pp. 171 et sub.; Psarouda-Benaki, ‘Pros ena “Europaiko” Poiniko Dikaio’, 53 Poinika Chronika (2003), pp. 962–963 regarding the problems of ‘governmental’ legislative function; J.Vogel, ‘Harmonisierung des Strafrechts in der EU’, 150 GA (2003), p. 332, justifying the model of ‘governmental’ legislative function. 27  P.-A. Albrecht, loc. cit., pp. 200 et sub. ; Günther, ‘Diethnis Antegklimatiki Politiki: H Poreia pros ena Pagkosmio Dikaio Asfaleias’, in Manoledakis and Prittwitz eds., op. cit., pp. 29 et sub.; J. Vogel, ‘Europäische Kriminalpolitik- europäische Strafrechtsdogmatik’, 149 GA (2002), p. 527. 28  Collate Günther, ibid., p. 25. 29  For an analytical approach see Κaiafa-Gbαndi, ‘Europäisches Strafrecht – Die Perspektive des Grundrechtsschutzes nach dem Verfassungsentwurf für Europa’, 87 KritV 2004, pp. 9 et sub.



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specifically it can be observed both at the level of the harmonization attempt of various offences within the EU, as the Common Action for criminalizing the participation at a criminal organization30 or the framework decision for combating terrorism showed,31 as well as at the level of the function of the EU coordinating organs for combating crime, as the arrangement of Europol’s actions and immunities showed.32 The deconstruction of fundamental rights becomes more spectacular though when the EU appears in the international environment and signs agreements with third states on criminal law matters. At this point, one should remember the well-known reactions which were provoked by the agreements on extradition and judicial assistance signed with the US.33 These agreements were marked by serious violations of fundamental principles of the European Convention on Human Rights (ECHR) and its protocols despite their recognition as part of the basic principles of Community law (art. 6 TEU). Furthermore, the new philosophy regarding the protection of fundamental rights, which consigns basic points of their entrenchment to negotiations between the interested parties for every single case, has become easily discernible and results to the absolute loss of the protection’s institutional character. So the retreat of state sovereignty towards the supranational organization of EU appears to function in a multiplying way for the deconstruction of fundamental rights. This is the case because, although the EU creates through its organs new possibilities of their violation, neither does it scrutinize these violations at a supranational level34 nor does it submit itself, like its member states, to international scrutinising mechanisms of this protection.35 Beyond this fact the EU apparently believes that as a newly emerging holder of power it has the right to negotiate the system of protection of fundamental rights with the consequence that already established standards of protection come again under discussion, not in order to set a minimum basis of institutional protection but, conversely, in order to accept a mechanism of negotiations for them.36

98/733/ΔΕΥ, L351/1-2 on 29-12-1998. L164/3-7 on 22-06-2000. 32  See the Convention regarding the establishment of the European Police Office (C 316 on 27-11-1995, known as Europol Convention), its amendments following the relevant Council decisions (C 26 on 30-01-1999, C358 on 13-12-2000, C362 on 18-12-2001, C312 on 16-12-2002 and C2 on 06-01-2004), and the protocol regarding Europol’s privileges and immunities (C221 on 19-07-1997). 33  Kaiafa-Gbandi, op. cit., pp. 248 et sub. 34  The European Court of Justice lacks such competence for matters concerning the Third Pillar (art. 35 TEU). 35  Because the EU has not yet acceded to ECHR. Τhe remarks of the text clarify also the difference between this supranational kind of deconstruction and the deconstruction of fundamental rights’ protection which is observed at a national level. 36  Kaiafa-Gbandi, op. cit., pp. 268–270. 30  31 

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3. The New Structure of the EU, the Identity of its Competences and its Leading Aim in the Field of Criminal Matters In view of the aforementioned basic characteristics it is understandable that one focuses with particular interest his attention on the provisions of the Constitutional Treaty concerning criminal law, since regardless of its future it can at least provide us with an idea of the course for the improvement of current deficits. The first fact that one needs to take into consideration is that the Constitutional Treaty abolishes the pillar distinction and unifies the EU structure and function by establishing a supranational organization, which is much more cogent and potent because now all the EU competences conferred by the member states are invariably exerted on a Community basis (art. I-1§1).37 In this way the current field of transnational cooperation (Third Pillar), where all criminal matters are subsumed, ceases to exist and this means, at least at first sight, that the EU role in the area of criminal law is perspicuously reinforced while the sovereignty of the member states commensurately recedes. Certainly every competence of the Union remains granted, specialized and restricted (art. I-11§2). Nevertheless, to the extent that the judicial (art. III-270 and subsequent) and police cooperation (art. III-275 and subsequent) in criminal matters are categorically defined as an area of shared competence between the EU and member states (art. I-14§2j), the EU competence in the field of criminal law cannot be questioned. Moreover, the fact that this competence is characterized as a shared one should not make us jump to the conclusion that the role of the EU and the member states is coequal. On the contrary, according to the Constitutional Treaty ‘when the Constitution confers on the Union a competence shared with the Member States in a specific area the Member States exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its own’ (art. I-12§2). This practically means that the shared competence becomes from the moment of its exertion an exclusive one and only after its recession can the member states’ competence be revitalized. Hence, to the extent that the shared competences displace those of the member states according to the ‘rule of prevention’,38 it is clear that the EU has precedence in 37  Triantafyllou, To Schedio Syntagmatos tis Europaikis Syneleysis (Athens-Komotini, 2003), p. 69; Monar, Der Raum der Freiheit, der Sicherheit und des Rechts im Verfassungsentwurf des Konvents (Integration 2003), pp. 536–537. However one must see also about the exceptions which resemble to the structure and function of the Pillars: Triantafyllou, ibid., pp. 94 et sub.; Monar, ibid., pp. 537 and 545. 38  Triantafyllou, ibid., p. 45; Μοnar, ibid., pp. 543–544. Hence the provision of art. III-259, which foresees that the national parliaments should take care in keeping the subsidiarity principle in the field of police and judicial cooperation in criminal matters, becomes quite relative. For the scrutiny of the prerequisites of the proportionality principle see art. 6 of the annexed to the Treaty protocol regarding the implementation of subsidiarity and proportionality principles and Psarouda-Benaki, loc. cit., p. 968.



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the area of judicial and police cooperation in criminal matters.39 Certainly, the member states share in this field, along with the Commission, a right of initiative regarding the proposal of the enacted legislative acts (art. III-264 b), but in order that a proposal like this is considered one quarter (1/4) of the member states at least must support it.40 The above findings lead to a first important conclusion: according to the Constitutional Treaty, the EU becomes the primary holder of competence in the area of judicial and police cooperation in criminal matters and consequently the choice of a concentrating model appears as evident. Beyond this issue, the exertion of the EU competences on a Community basis means that the EU can bind the member states in the criminal field much more effectively through the imposition of sanctions if they do not comply with the measures that it determines (art. III-362§3),41 while the enactment of these measures generally requires majority and not unanimity.42 Thus, we notice that in this way the EU’s role in the area of criminal matters43 is enhanced, while the member states function weakens. At the same time, the member states are bound much more effectively to the observance of the EU choices which might not be their own. Surely at this point one might contend that the cooperation in criminal matters between the member states favours by its own nature an EU primacy44 and under this context the aforementioned inferences should not be faced with caution. Nonetheless, the clarification of the leading aim of the EU competences in the sensitive area of criminal law is of decisive importance, before one adjudges whether the unquestionable transfer of power to the supranational organization of the EU and the commensurate retreat of the state sovereignty takes place with the perspective of serving the people of Europe and their freedoms. The EU contact with criminal law in the Constitutional Treaty is detected as one of its cardinal aims which are highlighted in the articles I-3. It is related 39  The possible invocation of the subsidiarity principle cannot refute this conclusion, because the area of the member states’ police and judicial cooperation in criminal matters is an area where effects ‘can…be better achieved at Union level’ according to art. Ι-11§3. However, it is certain that violations of the principle of subsidiarity can also occur in this area and that is the reason why the annexed to the Treaty relevant protocol is very important (see particularly art. 6). 40  About the compromise this regulation expresses see Μonar, loc. cit., pp. 546–547. 41  Skouris, ‘Oi Protaseis Metarythmisis tou Koinotikou Systimatos Dikastikis Prostasias me Aformi to Schedio Syntagmatos tis Europaikis Enosis’, in Manitakis and Papadopoulou eds., op. cit, pp. 344–345, notes that if the mere omission to notify measures transfering a European framework law to the national legal realm is sanctioned, it would be absurd if the more serious violation of the substantive obligation to transfer a European framework law to the national legal realm was not sanctioned too. Hence, Skouris suggests the alteration of the provision’s wording. 42  Nevertheless, see the exceptions of the rule which still require unanimity before a decision is taken (arts.ΙΙΙ-271§1, ΙΙΙ-274§1, ΙΙΙ-275§3 and ΙΙΙ-277). 43  Collate Psarouda-Benaki, loc. cit., p. 965. 44  The Union coordinates also the policies by which the Member States aim to achieve their common objectives (art. I-1§1).

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to the establishment of an area of freedom, security and justice, which must certainly secure the control of criminality in order to be fulfilled within a Union without internal borders. However, from article III-257, the first provision devoted to the area of freedom, security and justice, it clearly stems that the EU has placed as a predominant aim the guarantee of ‘a high level of security’, which is endeavoured to be fulfilled through the enactment of various measures, including measures of preventing and combating crime, judicial and police cooperation in criminal matters etc.45 So, although one would expect that the EU interventions in the area of criminal law would express beyond the aim of the protection of legal goods the guarantee of people’s freedom -especially after the incorporation of the Charter of Fundamental Rights in the Constitutional Treaty- the established imbalance through the institutionalized priority to security is apparent.46 According the above finding we can say that in the Treaty for establishing a Constitution for Europe the EU becomes not only the primary holder of competences regarding arrangements in the area of judicial and police cooperation in criminal matters, but it also confirms and upgrades the primacy of the institutionalized aim of security that its provisions must serve in this field. This fact already creates intensive problems because the EU, through its Constitutional Treaty and the symbolic gravity that the Treaty itself possesses, should direct its action in the criminal field towards the fulfilment of a high level of protection not simply for the legal goods47 but simultaneously for people’s freedom and the enjoyment of the wealth of justice by them.48 This combination constitutes a fundamental principle of the European legal civilization, which unfortunately the Constitutional Treaty does not respect. Undoubtedly, the question that still

45  Art. ΙΙΙ-257 is devoted to the area of freedom, security and justice. Although its first paragraph refers to the fact that fundamental rights will be respected, the following paragraphs make it clear that the term ‘freedom’ is exclusively conceived as freedom of movement, ‘justice’ is equated with the facilitation of access to the justice system and the mutual recognition of judicial decisions, while the EU’s main objective is ensuring ‘security’, which is the only one for which a ‘high level’ of attainment is pursued. However, if security is not pursued through a parallel and balanced relation with freedom, a notion which certainly encapsulates much more than the mere freedom of movement within a Union without internal borders, then it is evident that this freedom has nothing to do with a state keeping the rule of law. For the goal of political security in the EU see J. Storbeck and M. Toussaint, ‘Outline of a Balanced and Effective Internal Security Strategy in the European Union’, 12 European Journal of Crime, Criminal law and Criminal Justice (2004), pp. 8 et sub. 46  See K. Lüderssen, ‘Wer will das bessere Europa?’, in Schünemann ed., Alternativentwurf Europäische Strafverfolgung (Köln 2004), p. 46. 47  That would be a more appropriate way for naming the pursued security. 48  See also the proposal of Schünemann ed.,op. cit., p. 10, for amending art. ΙΙΙ-257§3 (initially draft art. ΙΙΙ-158, 2003/C 169/01), where the following wording is suggested: ‘The Union shall endeavour to ensure a high level of freedom, security and people’s fundamental rights against third parties and state authority.’



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lingers is whether this early negative picture concerning the general aims is refuted by the specific constitutional provisions related to criminal law.

4. The Content of EU Competences in the Area of Criminal Law These provisions are subsumed in the fourth and fifth part of the chapter on the area of freedom, security and justice and categorized into provisions for judicial and police cooperation in criminal matters. Nonetheless, it is more appropriate for a systematic study to classify these provisions into three distinctive categories: those concerning the law of criminal procedure, those concerning the substantive criminal law and, lastly, those devoted to the EU organs related to penal repression. 4.1. The Provisions Related to Procedural Criminal Law The provisions concerning the law of criminal procedure have apparently greater significance for the EU,49 since they primarily underpin the aimed judicial and police cooperation, and that is the reason why they precede. Besides, for the first time in the primary law related to criminal matters, the mutual recognition of judgments and judicial decisions is proclaimed as a fundamental principle, while furthermore it is categorically stated that the judicial cooperation in criminal matters includes also the approximation of member states’ laws and regulations in the areas of criminal law and procedural criminal law according to what is stipulated more specifically in the following provisions (art. III-270§1). An initial observation which must be expressed at this point is that the principle of mutual recognition can be compatible with the field of free movement of goods, from where it originates, but this does not connote that its transfer in the field of criminal judicial decisions can take place without severe disputes for the rule of law.50 The first invocation of this principle in the criminal law area, although it was not foreseen by the primary law, appeared in the preamble of the framework decision for the European arrest warrant,51 from where we know that the basic objective for its transfer in the field of criminal law is its detachment from the

49  According to Ηassemer, loc. cit., pp. 24–25, criminal procedural law constitutes the field from where efforts for a European criminal law should begin particularly in view of its proximity with constitutional law and people’s fundamental rights. 50  Schünemann and Nestler, ‘Thesen zur “Europäisierung” der Strafverfolgung durch das Prinzip der gegenseitigen Anerkennung’, in Schünemann ed., Fortschritte und Fehltritte in der Strafrechtspflege der EU (2004), pp. 202–203. 51  Tsolka, ‘Europaiko Entalma Syllipsis’, 52 Poinika Chronika 2002, p. 106; J. Vogel, loc. cit., p. 319. About other legal instruments concerning the appearance of the principle of mutual recognition see Kainer, ‘Der europäische Raum der Freiheit, der Sicherheit und des Rechts-Tagungsbericht’, Integration (2003), p. 278.

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principle of double criminality.52 As one can easily perceive, the promotion of the principle of the judicial decisions’ mutual recognition, which constitutes the fundament of the Constitutional Treaty provisions in the criminal law area, would be capable of securing the maximum possible effectiveness with the maximum possible simplification, because the provisions of the member state from which we would petition for the recognition of a decision would not need to be taken into consideration or could not impede the proceedings. And since a measure like this cannot become unquestionably acceptable, this is the reason why the Treaty envisages the establishment through a European framework law53 of minimum rules of evidence, procedural guarantees and other specialized elements of criminal procedure as well as minimum rules regarding the definition of a range of crimes and their sanctions. However, one must not overlook two points: first it is obvious that, exactly because the recognition of judicial judgments and decisions is envisaged to unconditionally cover all their range (art. III-270§1) while the approximation of the substantive and procedural criminal law through minimum rules between member states is initially foreseen only for certain areas (arts.III-270§2 and III271§1 (a) and (b)),54 the Treaty considers as given the possibility for the judicial judgments’ recognition even in areas where such an approximation may not have taken place. Hence, to name but one example, the possibility that a member state will be called to recognize in the future a convicting decision of another member state against a citizen of its own or a legal entity located within its territory with all the consequences that this might entail, cannot be ruled out, although this might concern an act which according to its own legislation is not criminalized. This possible scenario has already been validated by the framework decision of the European arrest warrant for a certain list of offences.55 As one can understand, such an outcome, touches the hard core of the rule of law, since we cannot argue that this constitutes merely ‘a transnational criminal procedure’, where lex is the criminal law of the state having jurisdiction and consequently that the law of the member state where the decision is executed is immaterial.56 When coercive actions with the maximum possible constraint for people’s freedom occur in the member state, where the recognition or execution of 52  Manoledakis and Kaiafa-Gbandi, ‘Paratiriseis stin Protasi tis Epitropis gia tin Ekdosi ApofasisPlaisiou apo to Symvoulio Sxetika me to Europaiko Entalma Syllipsis’, 51 Poiniiki Dikaiosyni (2001), pp. 1107 et sub.; Tsolka, ibid., pp. 108–110. 53  It is a legal instrument commensurate with the present framework decisions but different too in view of the fact that the co-decision of the European Parliament is needed in order to be enacted. See infra in the main text. 54  However there is the possibility of expanding the areas of criminality for which approximation of the member states’ legislative acts could take place, if the Council deems so according to art. ΙΙΙ-172§1(c). 55  Tsolka, loc. cit., p. 109. 56  Tsolka, loc. cit., p. 108.



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a foreign convicting decision takes place, this state can indeed have the pretension, even if it executes the decision on behalf of another state, to keeping the limits that it has set for itself when it issues or executes convicting decisions within its national borders. And it is self–evident that the existence of double criminality appears as a minimum precondition at this issue.57 Hence it becomes apparent that the generalized acceptance of the principle of the judicial decisions’ mutual recognition between member states leads inevitably to the dominance of the most punitive criminal legislation.58 On the other hand, we should also not overlook the exact point where the actions of facilitating the aforementioned procedure through European framework laws establishing minimum rules for the mutual acceptance of evidence, the rights of victims59 etc., will lead to. These obligatory minimum rules will in turn be transferred to the internal law of member states, which is of course not hindered to provide a higher level of protection (art. III-270§2). Subsequently, it becomes evident that in order to facilitate the use of the principle of mutual recognition procedural guarantees of two speeds are created: those which the EU promotes as minimum rules for facilitating the above principle and those providing higher protection perhaps, which could be valid only within a state’s territory.60 But what is the logic of such a structure? Apparently the logic is that what one enjoys as a right in one state does not mean that one will also enjoy it in an internationalized procedural criminal law within the EU. And what can be the future of such a structure? Rationally the dominance of the minimum rules content, because no state that exerts power and is prone to be subjected to the minimum possible restrictions will sustain, in the long run, a minimum and maximum level of protection. Hence, sooner or later the flattening of guarantees towards the lower level is inescapable, since this will be the level where precisely the EU will accomplish to find the minimum points of consensus between member states in order to describe these minimum rules. Besides, the last moment’s amendment of art. III-27061 cannot be a sufficient guarantee for any violations of fundamental principles. Art. 270 granted through the addition of two new paragraphs the possibility to every Council member to invoke that a proposed European framework law concerning minimum procedural rules infringes upon fundamental aspects of its criminal justice system and request the examination of this issue by the European Council. In Schünemann and Nestler, loc. cit., pp. 202–203. See Schünemann ed., Alternativentwurf Europäische Strafverfolgung (Köln 2004), pp. 10 et sub., where the exclusion of the principle of penal decisions’ mutual recognition from the Constitutional Treaty is expressly supported. 59  See the reservations of Lüderssen, in Schünemann ed., loc. cit., p. 47. 60  Psarouda-Benaki, loc. cit., p. 969. 61  See its initial form in the draft art. ΙΙΙ-171 (2003/C 169/01). 57 

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such a case the European Council has three options: (a) to request during a four-month period by the parties proposing the relevant statute to submit a new proposal, whereupon it is clear that the reservations of the dissenting member state become respected,62 (b) to remain inactive during this period, so that if 1/3 of the member states wish they can proceed to an enhanced cooperation with the proposed statute which cannot concern the non-participating states though, (c) to allow the draft of a European framework law at the Council, which means that the suspended legislative procedure will continue as normal (art. III-396) and might eventually lead to the statute’s enactment, in view of the majority decision taking process and despite the objections of the member state which contends the incompatibility of the European statute provisions with fundamental aspects of its legal system.63 Thus, although the Constitutional Treaty gives the right to a member state to impede the enactment of a framework law which violates fundamental aspects of its criminal justice system, the outcome of this possibility is not always secured in favour of respecting similar fundamental objections and consequently the EU does not contribute to the European legal civilization by respecting the legal traditions and constitutional principles of its member states. Besides, from a substantive point of view, what the EU needs is not minimum rules for the mutual recognition of judicial judgments between member states but primarily a consensus concerning the necessary standards of the procedural rights’ protection64 or, in other words, a model of protection which is not ruled by considerations of effectiveness or simplification but which defines the unswerving, indispensable level of protection for a law community with principles inherited by the national constitutions and ECHR. In accordance with the above inferences we can add one more important conclusion to those we achieved deducing: the principle of judicial decisions’ mutual recognition, as a harbinger of an effective, simplified criminal law with minimum requirements at the level of procedural guarantees, becomes the basic instrument for promoting the security aim which runs through the field of EU criminal law competences according to the Constitutional Treaty. The criminal procedural law according to the Constitutional Treaty will be developed in the EU in order to facilitate the recognition of judicial decisions and thus attain a distorted function which violates its historical identity as a Charter of free people. And this, of course cannot but induce anxiety. 62  It must be noted that if within 12 months from the time the new legislative proposal was submitted the framework law is not issued, then there is the possibility, if one third of the member states so wish, to proceed cooperating on the basis of this proposal but this step will not affect the rest of the member states in any way. 63  One realizes the significant problem that will appear as far as the binding force of the relevant European provisions is concerned, because the transfer of these provisions to the national legal realm of the state which objects might contravene its own Constitution. 64  See Νestler, ‘Europäisches Strafprozessrecht’, 116 ZStW 2004, 350.



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4.2. The Provisions Related to Substantive Criminal Law In order to facilitate in the long term the mutual recognition of judgments (art. III-270§1) but also to underpin the aim of accomplishing a high level of protection for people (art. III-257§3), the Treaty foresees the EU intervention in the field of substantive criminal law too. This is an intervention that seeks to approach the legislation of the member states in areas of particularly serious criminality with cross-border dimensions. The Constitutional Treaty does not open the prospect of creating a ‘Model of European Criminal Code’. However, the areas – in which the EU competence of intervention is recognized – are not only open to expansion in the future (art. III-271§1)65 but they also have such amplitude already that any scrutiny of the EU actions in the field of criminal law within its granted, specialized and restricted power is made excessively difficult. The Treaty enumerates areas in the field of criminal law with ambiguous content such as those of organized crime,66 corruption etc. On the other hand, if we compare this adjustment with the currently valid provisions (arts.29 and 31 TEU) we can ascertain that the EU competence to intervene in the area of criminal law through minimum rules, even for the definition of criminal offences and sanctions, is significantly expanded as far as the possible fields of criminal activities that can become the subject-matter of its intervention are concerned.67 Furthermore, the EU expressly now attains the competence to enact even by itself (i.e. through European laws and not merely framework laws68) measures for combating and thus criminalizing the fraud against its financial interests (art. III-415),69 a power which was not granted by its founding Treaties. In other words, the Constitutional Treaty clearly expands and deepens the EU competence in the area of substantive criminal law. If we momentarily leave aside the special adjustments for combating crime against its financial interests, we can ascertain that the EU has competence according to the Constitutional Treaty to enact minimum rules about the definition of criminal offences and sanctions. However, this does not mean that its relevant competence retains its present form, because the power to enact minimum rules according to the Treaty (and in view of its exercise on a Community basis) begets 65  Schünemann, op. cit., p. 195, notes the danger that criminal law might end up being simply an ‘addendum’ of the EU’s extremely broad listed competences. 66  Th. Weigend, ‘Die Europäische Verfassung und das Strafrecht’, 116 ZStW 2004, pp. 285–286. 67  Μοnar, loc. cit., p. 541. 68  Regarding the replacement of the regulation as well as the convention (art. 34§2(d) TEU) by the ‘European law’ and the directive as well as the framework decision (art. 34§2(b) TEU) by the ‘European framework law’ again see Triantafyllou, op. cit.,pp. 69 and 92. 69  R. Hefendehl, ‘Zur Frage der Legitimität europäischer Straftatbestände’, in Schünemann ed., op. cit., p. 84.

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a much more effective commitment on the member states, which can now be obliged to transfer the European framework laws in their internal legal system even through the imposition of sanctions (art. III-362§3).70 Nevertheless, in order to obtain a clear picture it is also useful to clarify that the logic of minimum rules in the area of criminal law is different than the one concerning procedural provisions.71 Here the minimum rules concern the definition of crimes and sanctions and their use for the approximation of member states’ criminal legislations connotes that they are binding as far as their minimum elements are concerned, because if member states could transfer them into their internal legal system and simultaneously demand the addition of other elements as minimum for the existence of a crime, this would mean that an act would not be criminalized according to their state criminal law, although the EU would wish it to be criminalized in all its member states.72 For this exact reason it is not reiterated at this point, that that member states may have any discretionary power commensurate with that in the procedural field concerning the level of protection of human rights in criminal procedure, where they can add other requirements to their internal legislation as minimum requirements for the activation of criminal repression by increasing the level of protection of people’s procedural rights. What a member state can do differently than the EU provisions in the field of substantive criminal law, i.e., differently than the provisions of minimum rules, is to establish a wider field of criminal acts where the EU minimum will be integrated. Thus, the above clarification makes it obvious that the EU practically acquires the competence of setting the breadth of criminal repression by defining its minimum starting point and this naturally constitutes an extremely important decision for the member states’ criminal legislations, particularly when it is known that this EU activity is subsumed into the more general aim of accomplishing a high level of security which, as experience shows, normally favours the expansion of penal repression against people’s freedom. However, one would object, perhaps, that any reservations should recede to the extent that the European framework laws as well as European laws (which replace the framework decisions of the third pillar) now require the co-decision of the European Parliament, at least in the matters like this one See supra fn. 40. The fact that the minimum rules method is a good example of reverse subsidiarity that tends to expand EU competences see Triantafyllou, op. cit., p. 92. 72  Psarouda-Benaki, loc. cit., p. 969, notes that if the European text provides the definition of a crime as well as the sanctions’ framework then the freedom of the national legislator is significantly restricted because significant differentiations will not be tolerated. See also the criticism of Schünemann and Nestler, loc. cit., pp. 197–198, regarding the current EU capability according to art. 34§2(b) TEU to adopt framework decisions for the purpose of approximation of penal laws of member states. 70  71 



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where the normal legislative procedure is followed (art. III-396).73 Undoubtedly, the co-equal participation of the European Parliament in the Union’s legislative process74 reduces the democratic deficit75 which constituted the basic core of criticism regarding the EU intervention in the area of criminal law. Here indeed one should acknowledge that the change in the EU legislative process is a significant progress from a formal as well as a substantive point of view, because it signifies the transition from an organization governed by powerful executive organs (which include representatives from the member states) to a democratic union in which the legislative function is delegated on equal terms to the elected representatives of European people. And this is indisputably a very important progress on an institutional level too.76 Moreover, one would argue that the normal legislative procedure, as is now foreseen by the Constitutional Treaty, expresses the dual legitimizing base of the Union as a union of people but simultaneously as a union of European member states too, which participate in the legislative procedure through the Council. Nevertheless, the question that still remains, in my opinion, is whether the enactment of European laws or framework laws concerning the establishment of criminal acts or minimum binding rules for them satisfies the democratic principle.77 The cornerstone legal principle nullum crimen nulla poena sine lege, which is constitutionally embedded in numerous member states, does not depend upon the name of a regulating rule as law but upon its identity as an expression of the democratic principle.78 Despite the fact that the participation of the European Parliament in the legislative procedure clearly improves the situation, as it provides an outlet for the democratic principle’s expression, it does not solve the problem. According to the legislative procedure prescribed by the Constitutional Treaty it is possible to enact a European law or framework law even when there is no majority within the European Parliament.79 Nonetheless, restrictions and interventions in people’s freedom imposed by criminal law as Triantafyllou, op. cit., p. 78. Papadimitriou, ‘Eisagogi’, in Papadimitriou ed., To Europaiko Syntagma: To Schedio tis Europaikis Syneleusis (Athens 2003), p. 16; Νickel, ‘Das Europäische Parlament als Legislativorganzum neuen Institutionellen Design nach der Europäischen Verfassung’, Integration (2003), pp. 503, 504, 508 and also fn. 90. 75  Psarouda-Benaki, loc. cit., pp. 962, 967. 76  Triantafyllou, op. cit., p. 71. 77  See reservations of Lüderssen, loc. cit., p. 48. 78  Indicatively see Androulakis, Poiniko Dikaio: Geniko Meros (Athens, 2000), p. 95. 79  This can happen if the European Parliament at the second reading does not express its views within three months from the time the Council has informed Parliament of its position. In this case ‘the act concerned shall be deemed to have been adopted in the wording which corresponds to the position of the Council’ (art. ΙΙΙ-396§7(a)). The same applies if the European Parliament does not succeed in rejecting, by a majority of its component members, the Council’s position (art. ΙΙΙ-396§7(b)). In the aforementioned instances the European law or framework law will be issued simply because it obtained the Council’s approval by majority. Schünemann, op. cit., pp. 22–24. 73 

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ultima ratio according to the tradition of the European legal civilization can only be determined by an organ, which conveys with the most representative way the people’s sovereignty.80 Certainly, this organ can only be a Parliament elected by a free, co-equal, general and secret balloting. Thus, the well-known problem of governmental enactment of law, which predominantly characterized the EU as an institution, is reduced but not extinguished.81 And, understandably one cannot contend that, at least in the framework laws, the democratic principle is duly kept through the intervention of national parliaments. Because of the fact that the definition of criminal acts in the sense of minimum rules is binding for the member states82 obviously constitutes a preordained decision of utmost importance.83 On the other hand, I do not deem as convincing the argument that the situation in the EU could not be different, since the EU is a union not only of European people but also of states which should express themselves through the legislative process even in the field of criminal law. This is the case because in the internal legal system of the member states also the legality of the enactment of criminal laws rests upon the parliament and not upon the executive power. Hence, the participation of member states within the EU, particularly on this issue, ultimately requires parliamentary expression. This participation can take place either by granting exclusive competence to the European Parliament especially for the enactment of European laws or framework laws concerning criminal matters (procedural and substantive)84 and with a majority, that expresses the Lüderssen, loc. cit., pp. 193–194. Collate Psarouda-Benaki, loc. cit., pp. 967, who argues that the foreseen and perplexed procedure of co-decision guarantees the principle of democratic legitimation for the criminal law rules that will eventually emerge; see also J. Vogel, loc. cit., p. 334; Schünemann and Nestler, loc. cit., p. 200. 82  See supra and fn. 40. 83  Unless one of course argues that the European framework laws, which according to the Constitutional Treaty are binding upon the Member States as to the result to be achieved, do not create any obligation upon the states’ legal sphere as far as the minimum standards of punishing certain actions and their sanctions are concerned. In such a case no conflict with the democratic principle would exist. However, it is evident that such a position could not be valid, because otherwise the approximation of laws (following EU intervention) on the minimum punishing standards could never practically be achieved. About the binding force of the current Third Pillar framework decisions see Schünemann, ‘Ein Gespenst geht um in Europa-Brüsseler “Strafrechtspflege” intra muros’, 150 GA (2002), p. 504; J. Vogel, ‘Harmonisierung des Strafrechts in der EU’, 150 GA (2003), pp. 315–316, 319–320, 322, but also Kaiafa-Gbandi, op. cit., pp. 20–22. For similar problem that currently exists regarding Union law violations that should be criminalized via directives but without setting down any punishment criteria see Kaiafa-Gbandi, op. cit., pp. 118–121, 293 et sub.; Musil, ‘Umfang und Grenzen Europäischer Rechtssetzungsbefugnisse im Bereich des Strafrechts nach dem Vertrag von Amsterdam’, 20 NStZ (2000), p. 70; Sieber, ‘H Exelixi tou Poinikou Dikaiou sta Plaisia tis Europaikis Enosis’, 3 Yperaspisi (1993), pp. 838–839; Τiedemann, ‘EG und EU als Rechtsquellen des Strafrechts’, FS für C. Roxin, pp. 1404, 1411. 84  Kaiafa-Gbandi, op. cit., pp. 83–84 and 299; Pradel, ‘Gnomodotisi Schetika me tin Epivoli Kyroseon Poinikou Charaktira gia Paraviasi Diataxeon Koinotikou Dikaiou’, Elliniki Epitheorisi 80 

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majority of the European people,85 or at least, if one insists upon the Council’s participation, by amending the Constitutional Treaty (art. III-396) so that the enactment of European laws or framework laws related to criminal matters will not be feasible unless a qualified majority of the European Parliament expressing the majority of European people exists.86 Finally, the amendment of art. III-271,87 according to which a Council member might lead the legislative procedure for a European framework law approximating offences and sentences to suspension still does not safeguard effectively against violations even of fundamental legal principles of member states.88 This is because if the European Council does not request the submission of a new proposal for the contested European framework law or does not remain inactive for a four-month period and refer the draft back to the Council, then the legislative procedure proceeds as normal (art. III-396) and might have a positive result despite the reservations of a member state, which considers that the proposed provisions of European legislation will infringe upon fundamental principles of its legal system. Hence, however, it becomes clear that there is space for the EU to intervene into the area of criminal law and conflict with fundamental aspects of the member states’ criminal justice system. Certainly then, the emerging issue is whether there could be any binding force towards the member states regarding similar legislative adjustments.89 The preceded analysis shows that through the Constitutional Treaty the EU expands and deepens the field of its competences in the area of criminal law and attempts to assume for itself, in view of the desired approximation of laws between member states, the demarcation of minimum standards of criminal acts for a vast ambit of fields, open to further expansion in the future. This decisive specification of the breadth of criminal repression (as far as its starting point is concerned) combined with the cardinal aim of security, on which the EU focuses its attention, provokes justifiable anxieties because the democratic deficit which is used to characterize the EU, despite its retreat, does not disappear. Nonetheless, Europaikou Dikaiou (2004), p. 89. 85  Schünemann ed., op. cit., pp. 22–23, holds the view that a two-thirds majority of the European Parliament should be required before enacting a European penal law or framework law in order to guarantee that this law will be based on a true majority of the citizens of the member states. 86  Ibid., pp. 18–21, where it is argued that such an amendment must be combined with a provision safeguarding the respect of previous rulings of the national parliaments from the Council members in the process of taking any relevant decisions. 87  See the initial wording of draft art. ΙΙΙ-172 (2003/C 169/01). 88  See supra. 89  This issue becomes particularly important in view of art. Ι-6 of the Constitutional Treaty, which depicts the jurisprudence of ECJ and states that laws ‘adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States’, i.e., even over the national Constitutions (see also the document from the Irish presidency CIG 73/04, 29/4/2004, p. 10).

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the extinction of this deficit is an absolute requirement, particularly for the branch of criminal law in light of the necessary linkage of its consequences with decisions based on the democratic principle. 4.3. The Provisions Concerning EU Organs Related to Penal Repression If we now turn our attention to the provisions of the Constitutional Treaty concerning the EU organs in the field of criminal repression we observe that, apart from the expansion of the current organs’ competences, i.e., Eurojust and Europol (arts. III-273, 275 and 276),90 the possibility of creating a new but highly contested organ,91 the European Public Prosecutor’s Office, is also foreseen (art. III-274). It is evident that Eurojust as well as Europol transcend through the Constitutional Treaty their coordinating character and expressly acquire decisive competences for all the serious crimes affecting two or more member states. Thus, it is foreseen that Eurojust, apart from coordinating the prosecutions and reinforcing the judicial cooperation between member states, may also undertake through the enactment of a European law the initiation of criminal investigations as well as the proposition of the initiation of prosecutions conducted by competent national authorities (art. III-273§1(a)).92 As far as Europol is concerned it is foreseen that the European law regulating its action and duties may assign to Europol, apart from the duty of data collection and processing, the coordination of investigations and operational actions of member states, their organization as well as their conduct 93 in cooperation with the competent authorities of the member states. On the other hand, it is noteworthy that the European law or framework law regarding Europol, which will enact measures for the operational cooperation, will not be issued through the normal legislative procedure (art. I-34§1), but will be adopted by the Council of Ministers with the simple participation of the European Parliament (arts.I-34§2 and III-275§3).94 Thus we observe that the expansion of Europol competences, especially in the sensitive section of operational cooperation, is accompanied by the respective expansion of the democratic deficit.

Kaiafa-Gbandi, op. cit., p. 187 (where further references can be found). Ibid., p. 107 (where further references can be found). 92  Μοnar, loc. cit., p. 542. 93  Ibid. 94  Regarding the fact that all the other legislative procedures (i.e., except for the ordinary legislative procedure) smoulder the problem of democratic deficit see Triantafyllou, op. cit., p. 81; Νickel, ‘Das Europäische Parlament als Legislativorgan-zum neuen institutionellen Design nach der Europäischen Verfassung’, Integration (2003), pp. 502–503 and S. Wolf, ‘Das Demokratiedefizit der EU aus Sicht der Europäischen Menschenrechtskonvention’, 6 ZeuS (2003), pp. 396–397. 90  91 



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Moreover, the evident problems in the relationship between Europol and Eurojust remain intact. As it is well known in the EU, Europol was established first as a police coordinating organ for combating interstate criminality. Nonetheless, the function of Europol even in the field of its original competence, i.e. the collection, analysis and supply of information to the relevant authorities of the member states, quickly made clear the rule of law deficits that accompany its role. It suffices here to recall two points: First, that Europol’s action is extended even to a stage of a pro-proactive policing,95 since the collection of information may concern people who cannot be deemed as suspects for committing crimes even in the future (art. 10 para.1(4) of Europol Convention). Second, that the level of legal protection which is provided to the people for their right of informative self-determination towards the function of Europol presents very serious deficits,96 especially due to Europol’s immunities.97 The provision for lifting Europol’s immunities is completely incompatible with the principles of our legal civilization, because this decision is always taken by its director (after considering Europol’s interests) and scrutinized by the Council, i.e. by an organ of primarily executive power. Hence, it becomes obvious that the exerted criticism for the fact that Europol has obtained through its competences a de facto leading role in the administration of pre-trial evidence is justified since this procedure should be in the hands of justice.98 For the purpose of overcoming these serious deficits it was deemed necessary to establish in the area of criminal matters a judicial coordinating organ as a counterbalance, the Eurojust,99 on which various expectations were trusted.100 Nonetheless, even the way the Constitutional Treaty 95  For this development see Vogel, ‘Combating International Organized Crime by International Cooperation: the German View’, 70 Revue Internationale de Droit Pénal (1999), pp. 340 et sub.; van den Wyngaert, ‘Transformations of International Criminal Law in Response to the Challenge of Organized Crime’, 70 Revue Internationale de Droit Pénal (1999), pp. 180–181. However both of these authors refer only to ‘proactive policing’. 96  Frowein-Kirsch, ‘Der Rechtsschutz gegen Europol’, 53 JZ (1998), pp. 589 et sub.; Gleß, Kontrolle über Europol und seine Bedienstete, 33 EuR (1998), pp. 764–766; Gleß, ‘Europol’, 21 NStZ (2001), pp. 624–625; Harding, ‘Exploring the Intersection of European Law and National Criminal Law’, European Law Review (2000), p. 384; Schomburg, ‘Justizielle Zusammenarbeit im Bereich des Strafrechts in Europa: Eurojust neben Europol?’, 32 ZRP (1999), p. 238; Schomburg, ‘Auf dem Weg zu einem europäischen Rechtsraum’, 77 DRiZ (1999), p. 110. 97  Kaiafa-Gbandi, op. cit., fn. 6, p. 193. 98  Kühne, Strafverfahrensrecht, 5 Aufl., p. 36; also Gleß, ibid., (2001), p. 624. 99  Berthelet, Chevallier and Govers, ‘Quelle relation entre Europol et Eurojust? Rapport d’ Égalité ou Rapport d’ Autorité ?’, Revue du Marché commun et de l’Union européenne (2001), p. 474 ; Schalken and Pronk, ‘On Joint Investigation Teams – Europol and Supervision of their Actions’, 10 European Journal of Crime, Criminal Law and Criminal Justice (2002), pp. 77–78; Schomburg, ‘Are We on the Road to a European Law-Enforcement Area? International Cooperation in Criminal Matters. What Place for Justice?’, 10 European Journal of Crime, Criminal Law and Criminal Justice (2000), p. 59; van den Wyngaert, loc. cit., p. 192. 100  For these expectations as well as the provisions of the Council’s decision on 28 February, 2002 which established Eurojust (L63/1-13, 06.03.2002) see Kaiafa-Gbandi, op. cit., fn. 6, pp. 195 et sub.

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eventually regulated Eurojust’s and Europol’s competences clearly shows that Eurojust was not given the competence to judicially control Europol’s actions. This might be considered as justified due to the primarily coordinating character of Eurojust. However, if one considers that the action of Europol, even in the field of its original competence, constitutes basically a collection of pre-trial material which should be judicially scrutinized (contrary to what its director has publicly supported101) then one can perceive the deficit left, unfortunately, unsettled by the Constitutional Treaty. On the other hand, this deficit cannot be controlled even by the judicial review of legality of all the EU organs’ actions by the European Court of Justice (art. III-365). And this is the case because the main problem is how the Treaty itself defines this legality. We have just seen that the Treaty does not create the necessary safeguards. Under this context, the foreseen political control of Europol, as well as the assessment of Eurojust’s activities, through the synergy of national parliaments too (art. I-42§2), although they indisputably constitute significant improvements to the present system,102 are not the decisive ones for securing people’s rights. Additionally, according to the Constitutional Treaty the EU aspires to establish an aggregate model of criminal prosecutions through the creation of a European Public Prosecutor’s Office, which will stem from Eurojust’s context and will be initially competent to combat crimes affecting the EU economic interests. However, the powers of the European Public Prosecutor’s Office can be extended to include all serious crimes having a cross-border dimension, if subsequently the European Council adopts unanimously a relative European decision which the member states would approve (art. III-274§4).103 Although these novelties are of decisive importance, since they are related to the creation of an EU organ, the most sensitive, for people’s rights field of action, the European law which will envisage the foundation, the regime, the conditions regarding the exertion of competences, the procedural rules governing the actions of the Public Prosecutor’s Office, the admission of evidence and the judicial control of its procedural actions will be according to the Treaty a law of the Council of

101  See indicatively Storbeck, Interview in Staapscourant, 05.07.2000, p. 2 (who notes that the only case for accepting judicial control is if Europol gains competence for independent conduct of investigations). 102  Psarouda-Benaki, loc. cit., p. 968. 103  Acccording to art. ΙΙΙ-175 of the Draft Constitutional Treaty on 18 July 2003 (2003/C 169/01) the competence of European Public Prosecutor’s Office included from the start not only the crimes against EU financial interests but also all the serious crimes having transnational dimensions. However, because of the adverse reactions against such a broad competence (Monar, loc. cit., p. 542), art. ΙΙΙ-175 was amended and the present art. ΙΙΙ-274 was formed (see document CIG 73-04, 29/4/2004, p. 56).



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Ministers that will merely require the European Parliament’s consent in advance (art. III-274).104 Hence, we observe that even though the EU expands through the Constitutional Treaty the competences of its existent organs in the field of penal repression in a way that gradually surpasses their coordinating role or even promotes a central model of criminal prosecutions, it does not accomplish to surmount considerable well-known deficits of the present system. Furthermore, and this is more perilous, although the power of the Public Prosecutor’s Office (on the whole) and the police (especially in its operational aspects) may principally infringe upon people’s rights, they are set on the basis of a democratic deficit which remains essentially intact in relation to its present form. Therefore, although the EU obtains organs with more decisive powers in the field of criminal repression, it binds them much tighter on to the executive power of the Council, which demarcates the most significant of their competences for European citizens. Undoubtedly, this favours the efficacious achievement of security that the EU deems as a priority aim, but it abrogates a traditional principle of European legal civilization, which demands the most intense interventions in people’s freedom to be commensurate with their democratic legitimation. According to the aforementioned thoughts which run through the area of substantive as well as procedural criminal law it becomes understandable that the role of the member states’ national penal systems remains indisputable. This can be clearly seen even from the provisions of the Constitutional Treaty regulating the Eurojust’s and Europol’s competences or the European Public Procecutor’s Office. However, the development of a criminal law which is co-determined in decisive aspects by the EU intervention justifiably focuses our attention on the issue of its potential democratic deficits, because it is exactly this European criminal law, which will influence decisively the character of the national penal systems, since they will be called to function within its frame at least in the cases of crimes with cross-border dimensions which are primarily regulated by the provisions of the Constitutional Treaty concerning criminal law.

5. The Protection of Fundamental Rights On the other hand, the weighty novelty105 of the entrenchment of fundamental rights and the judicial protection provided for them unfortunately cannot recant the worries created by certain provisions of the Constitutional Treaty related to It must be highlighted that the duties and responsibilities of the European Public Prosecutor’s Office and Eurojust will be regulated by European laws and not framework laws. Hence, one can easily see that member states will not have the capability of an autonomous intervention on this matter. 105  Triantafyllou, op. cit., p. 59; Monar, loc. cit., pp. 538–539. 104 

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criminal law. Certainly, this development is decisive, especially if one takes into account that amongst the rights that will institutionally bind the EU organs and be protected by the EU judicial mechanism there are the prohibition of death penalty (art. II-62§2), the prohibition of torture and inhuman or degrading treatment or punishment (art. II-64), the protection of personal data (art. II-68), the right to an effective remedy and a fair trial (art. II-107), the presumption of innocence and right of defence (art. II-108), the principle ne bis in idem (art. II-110) and the basic principles of legality and proportionality of crimes and sentences (art. II-109). Additionally, it is explicitly stated that ‘[i]nsofar as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention, (while) [t]his provision shall not prevent Union law providing more extensive protection’ (art. II-112§3). Nevertheless, despite the significant progress made by the aforementioned adjustments, it must be made clear that through the same Treaty the essence of these rights becomes relative. The specific provisions from the third part of the Treaty regarding the police and judicial cooperation in criminal matters have shown, to name but one example, that the classical powers of Europol regarding the selection and processing of personal data are not subject to any judicial scrutiny during their exertion, although they are linked to the investigation of punishable acts.106 Certainly this fact can generate significant problems for the rights of the defence of the accused, the respect of which according to other provisions of the Treaty must be safeguarded (art. II-108§2). Likewise, the judicial protection which is expanded significantly in the Union and which is foreseen to be offered by the European Court of Justice in criminal matters107 by granting the right of an individual action,108 although it is extremely important, cannot but be restricted in its scope by the limits set by the Constitutional Treaty itself.109 One of these limits is the general provision of limitations (art. II-112§1), according to which restrictions which respect the principle of proportionality can be imposed if they are necessary for achieving aims of general interest recognized by the EU or for protecting the rights and freedom of others. However, there exist rights, like the one to a fair trial, where one cannot think of similar restrictions because in a Union based on the rule of law one cannot distinguish between a 106  Regarding the problem on the level of interstate cooperation see Paraskeuopoulos, ‘H Epidrasi tis Sygchronis Antegklimatikis Politikis sto Poiniko Dikonomiko Dikaio’, 52 Poinika Chronika (2002), p. 587. 107  Triantafyllou, op. cit., p. 94, but see also draft art. ΙΙΙ-283. 108  Regarding the scope of an individual action (now art. ΙΙΙ-365§4, before draft art. ΙΙΙ-270§4) see Skouris, loc. cit., pp. 346 et sub.; Läufer, ‘Der Europäische Gerichtshof- moderate Neuerungen des Verfassungsentwurfs’, Ιntegration (2003), pp. 514 et sub. 109  See art. ΙΙΙ-377 of the Constitutional Treaty.



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fair and a less fair trial.110 Nonetheless, the distinction between rights subject to restrictions and rights which cannot be restricted has not been foreseen in the Constitutional Treaty. Lastly, we should not overlook that the initial draft of the Constitutional Treaty (18 July 2003) did not envisage the accession of the EU to the Convention for the Protection of Human Rights and Fundamental Freedom, but it merely stated that its future intention was to do so (art. I-7§2).111 Nonetheless, one can easily perceive the necessity of this further step112 if one considers that the European Court of Human Rights (ECtHR), contrary to the Court of the Union, functioned exclusively as a mechanism of protection for the fundamental rights and as an external to the states or the European Union institutional mechanism, i.e., to the systems of power from which the fundamental rights are violated.113 This is why despite the difficulties that it faces, the ECtHR is the most noteworthy model of protection of these rights that we presently have and the EU is not justified any more114 not to participate in this mechanism,115 especially when we recall the increased powers that it has lately attained. For this reason it is very positive that the amendment according to which the EU accedes to the ECHR (art. I-9§2) was eventually accepted while a relative protocol116 has been annexed to the Constitutional Treaty.

6. Concluding Remarks The aforementioned analysis of the way that the EU competences are structured and become concrete in the area of criminal law according to the Treaty J. Vogel, ‘The European Integrated Criminal Justice System and its Constitutional Framework’ 22 Maastricht Journal of European Comparative Law (2005), pp. 145 111  For the difficulties of this accession which are not insurmountable though, see Kousis, ‘H Prostasia ton Themeliodon Dikaiomaton stin Europaiki Enosi’, 23 Elliniki Epitheorisi Europaikou Dikaiou (2003), pp. 608–609; L. Papadopoulou, ‘O Europaikos Chartis kai h Prostasia ton Themeliodon Dikaiomaton stin Enosiaki Ennomi Taxi’, Το Syntagma (2001), pp. 1284–1286. 112  Fragkakis, ‘Anthropina Dikaiomata kai Europaiki Enopoiisi, 50 Nomiko Bima (2002), p. 1425; Rosakis, ‘O Chartis ton Themeliodon Dikaiomaton tis Europaikis Enosis’, 21 Elliniki Epitheorisi Europaikou Dikaiou (2001), p. 439. Regarding the EU accession to ECHR see L. Papadopoulou, loc. cit., pp. 1277, 1282 et sub.; Triantafyllou, op. cit., pp. 60–61. 113  Collate Spinellis, ‘Porismata apo ti Nomologia tou Europaikou Dikastiriou ton Dikaiomaton tou Anthropou Schetika me to Poiniko Dikaio (ousiastiko kai dikonomiko), in Ethniki Scholi Dikaston, pp. 199–200. 114  Chrysogonos, ‘H Europaiki Symvasi ton Dikaiomaton tou Anthropou’, in Ethniki Sxoli Dikaston, H Epidrasi tis ESDA stin Ermineia kai Efarmogi tou Ellinikou Dikaiou (Athens-Komotini 2002), ibid., pp. 72–74. 115  Triantafyllou, op. cit., p. 60; Tsiridis, H Prostasia ton Dikaiomaton tou Anthropou sto Plaisio tis EE (Peiraias 2003), p. 8; Alegre and Leaf, ‘Criminal Law and Fundamental Rights in the EU: Moving Towards Closer Co-operation’, 8 European Human Rights Law Review (2003), pp. 333–334; Callewaert, ‘Die EMRK und die EU-Grundrechtecharta’, 30 EuGRZ (2003), p. 201. 116  See document CIG 87/04, 6/8/2004, Prot. No. 32. 110 

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establishing a Constitution for Europe is adequate to clarify the challenges criminal law presently faces within the EU expanded framework. In my opinion, these challenges have a more general importance for the criminal law which is being developed nowadays in the international environment and they can be summarized into four central axes: 1) At the modern stage of political and economical development, which worldwide leads to a more and more intense use of penal repression117 the EU is called, in view of the historical moment of establishing a Constitution, to show that it seriously considers the citizen in the core of its actions.118 This choice requires ab initio that inside the unified area of freedom, security and justice the high level of protection for legal goods will be accompanied also by a high level of protection for people’s freedom and enjoyment of justice.119 According to the conquests of European legal civilization criminal law is committed to securing through its composed intervention even the freedom of those who violate the social peace. So if at this point there is no corrective intervention to the regulations of the Constitutional Treaty no member state will be able, in the future, to ask for a different choice of the basic aims of criminal law at least for that part of it, which will be co-formed by the EU. And this part is neither restricted in its scope nor of secondary importance. 2) The basic stake for criminal law in the following years, and especially within the context of the EU which was characterized by a predominantly governmental enactment of laws, will be the outcome of the democratic principle in the level of co-formation or even the autonomous production of criminal provisions by the EU. The possibility that every citizen has to co-determine through his representatives at the European Parliament the preconditions and the scope of losing his freedom within the criminal justice system and the enactment of criminal laws (both substantive and procedural) only on the basis of their approval by the majority of the people’s representatives, constitutes a profound legitimating principle of criminal law that the societies based on the rule of law should not lose even when they participate in supranational formations such as the EU. Therefore the stake regarding the dominance of the democratic principle must be won through an overcoming of the EU democratic deficit,

Günther, loc. cit., pp. 29 et sub.; regarding the relation between freedom and security see Manoledakis, Dimokratia-Eleytheria-Asfaleia. To Triptyxo tis Idanikis Politeias (Athens-Thessaloniki 2004), pp. 23 et sub. 118  See the Preamble of the Charter of Fundamental Rights. 119  Hence it is necessary to alter the wording of art. ΙΙΙ-257§3 of the Constitutional Treaty. 117 



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especially in the procedure of the criminal legislation enactment,120 and with a pattern that will never allow the issuance of a legislative act with criminal content in the EU without obtaining the majority of the European Parliament, which will express at the same time the majority of the people of the European Union. 3) The study of the Constitutional Treaty shows that the EU does not lack institutions in the field of penal repression but values which will fill its content.121 Major examples hereto constitutes the basic instrument on which the judicial and police cooperation in criminal matters is based, i.e., the principle of mutual recognition of all judicial decisions but also the foreseeable enactment of minimum rules for the rights of persons etc., in the criminal procedure. Both of these examples demonstrate that the effort of simplifying things for combating criminality, overlooks that the approximation of the member states’ legal traditions is a procedure which needs agreements concerning the principles, agreements that care for the content and essence of difference amongst member states and the citizens’ guarantees, and not simply agreements about the establishment of minimum rules that will facilitate the transnational recognition of judgments for a more effective penal repression. In other words, the way the EU desires to implement the principle of mutual recognition, which has already been recorded in the adjustments for the European arrest warrant, as well as the logic of minimum rules concerning procedural rights, as promotional instruments for the most punitive criminal legislation, form the third important challenge for criminal law. One can add to this content as an open prospect for the EU the possibility of establishing a centralized system of prosecutions through a European Public Prosecution Office, which could override the member states and acquire competence for a vaguely defined, wide scope of crimes. A competence which according to the Constitutional Treaty will have only a minimum of democratic legitimization122 as far as its relevant procedural rules are concerned.

120  Regarding the areas where EU should have competence to enact criminal laws, provided that the issue of EU’s democratic deficit is solved, see Hefendehl, in Schünemann ed., op. cit., pp. 84 et sub.; Schünemann and Nestler, loc. cit., pp. 198–199. 121  But see the positive generally assessment of Vogel, loc. cit., pp. 147 fn. 109. 122  In other words, through the enactment of a law by the Council of Ministers for which the consent of the European Parliament is only required (art. ΙΙΙ-274§1).

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Nonetheless, the problems of judicial cooperation in criminal matters would be feasible and expedient to be dealt with differently.123, 124 One should attempt to find a solution with the already planned function of the ne bis in idem principle at the pre-trial phase,125 with improved adjustments in the Treaty for judicial assistance in criminal matters126 as well as with well-defined limits on which convicting decisions could be recognized and executed in another member state without violating its constitutional principles.127 If one ponders that during the next few years it is expected that Eurojust’s function will bring significant improvements in this field, then one can perceive neither the necessity nor the hastiness of a diverse choice upheld by a levelled and dangerous principle of mutual recognition of judgments and judicial decisions according to what the Constitutional Treaty evangelizes. The same applies to the foundation of a European Public Prosecution Office for the crimes against the EU economic interests, since after the Eurojust’s expansion of competences according to the Treaty it is

123  And this is the case because if it is clear that EU will not have a central justice mechanism for trying all the crimes occurring within its territory, but the member states will preserve their competence to try and punish the criminal acts, then it would not be sound to disrupt these constitutionally often entrenched balances, that are related to the rights of citizens’ even in the pre-trial phase. However, if the Constitutional Treaty is passed unaltered then this thorny issue will emerge in the long term. 124  See relevant proposals, albeit with a different point of departure: Schünemann ed., op. cit., pp. 3 et sub. 125  See the initiative of the Greek presidency for a framework decision regarding the ne bis in idem principle (C 100, 26/4/2003, 24–27) and especially art. 3. 126  A main issue will arise when dealing with the procedural actions that should take place in other member states or with their assistance in order to advance the procedure in the member state which would be responsible according to the expanded function of the ne bis in idem principle (already from the pre-trial phase) to prosecute the offender(s). The fundamental principle for resolving this issue, which is foreseen in the Treaty for the mutual judicial assistance but not put in force yet (see art. 4 of the Convention for Mutual Assistance in Criminal Matters between Member States of the European Union (C197, 12-07-2000, pp. 3 et sub.)), is the undertaking of the relevant procedural actions according to the formalities and procedures requested by the petitioned member state so that it will be feasible to use in trial the evidence which may be found. It is self-evident that this rule cannot apply without exceptions. According to the Convention, these exceptions include the cases where the Treaty itself forsees otherwise for some novel measures (e.g., witness testimony through teleconference devices) or the state whose assistance is asked denies to offer any help by invoking that there is a conflict with certain fundamental principles. These exceptions could be improved by adding that as far as measures of procedural coercion are concerned, such as the arrest of a person, the confiscation of property or search in private areas, the law of the state whose assistance is requested will apply, since they are actions that have a particularly intense, intervening character for people’s freedoms (for another possible solution see also Schünemann ed., op. cit., pp. 10 et sub). 127  Hence,e.g., for confiscating the property of an offender the member state, which would be called to execute this measure following the recognition of a foreign judicial decision, could deny proceeding to this action by invoking its constitutional principles and claiming that this measure conflicts with them (this could happen at the pre-trial phase too).



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not expected that it will be possible for the member states to neglect the protection of the EU interests.128 Thus, the Constitutional Treaty, instead of establishing a new challenge in the area of procedural law through the prospect of founding a central model for prosecutions but also through the gradual promotion of a European procedural system of minimum requirements, should focus its attention to the existing central problems of police and judicial cooperation in criminal matters that still remain unsolved. To name but a few examples, the attention should be focused on the preservation of Eurojust’s judicial character,129 the judicial scrutiny of Europol’s action130 and the support of people’s defence in the new environment of transnational criminal trial, which is presently shaped, by the establishment of a new institution – ‘the Eurodefence’131 – acting as an equilibrating pole towards Eurojust and transnational investigative procedure. 4) The incorporation of the Charter of Fundamental Rights in the Constitutional Treaty and the recognition of the right of an individual action in front of the European Court of Justice, regardless of the foreseen extent of this right, constitute an outstanding progress in the field of criminal law. Nevertheless, this progress must be consummated with the EU accession to the ECHR, not only because the Union cannot request in this field for a more favourable treatment than that of member states, but mainly because people should not lose the special level of protection that a self-contained judicial mechanism for the protection of fundamental rights can offer. Indeed, the Constitutional Treaty actively responds to this fourth challenge,132 which does not exclusively concern criminal law. However, beyond this response the Union should proceed with making further steps for the more effective safeguarding of fundamental rights by creating a complete system of protection for them even at a pre-emptive

128  Some authors regard the Public Prosecutor’s Office (Schünemann, ed., op. cit., pp. 20–21) as necessary for prosecuting crimes committed by EU employees and crimes for which the state authorities do not respond appropriately or timely. Furthermore, it is suggested that the crimes committed by EU employees should be tried by a specialized court attached to the General Court according to art. III-359. However, the way of the selection of judges (art. II-355) (see Läufer, loc. cit., pp. 511–512) is not compatible with the conferment of criminal justice. Thus, in my opinion, important structural changes are required even before one specific category of crimes is tried by such a Court. 129  Kaiafa-Gbandi, op. cit., pp. 203–204. 130  Ibid., pp. 193–194. 131  For this proposal that requires the Constitutional Treaty’s entrenchment see Schünemann ed., op. cit., pp. 14 et sub.; Schünemann and Nestler, loc. cit., pp. 208–209. For the need to secure the rights of the defence see Βraum, ‘Aufbruch oder Abbruch europäischer Strafverteidigung?’, 23 StV (2003), pp. 577–578 and Vogel, loc. cit., fn. 109. 132  Art. Ι-9§2 of the Constitutional Treaty.

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level.133 We should never forget that the European legal civilization is an anthropocentric civilization and this fact is principally depicted by the safeguards for people’s fundamental rights and freedom. That is the reason why the Union should recall ‘the forgotten freedom’134 which was born in the bosom of European legal tradition and especially in the field of criminal law. It is highly expected that the EU will march during the 21st century through more and more intense forms of co-existence between its members. And this is the case because there seems to be no other way for its future. The crucial point during this course is not to abandon conquests of its legal civilization that made its presence distinctive and which are interrelated to people’s freedom, particularly in sensitive areas such as the criminal law. The Constitutional Treaty represents a significant effort towards this direction by diminishing the democratic deficit in the legislative procedure and institutionally safeguarding fundamental rights. However, more steps need to be taken. It is of utmost importance to convert the current European criminal law of intergovernmental enactment, which primarily serves the aim of security, into a democratically legitimate, European criminal law that along with the protection of legal goods will effectively guarantee the rights of people in a transnationally developing criminal trial.

133  L. Papadopoulou, loc. cit., p. 1276 (with further references) and Kaiafa-Gbandi, 87 KritV 2004, p. 25. 134  P.-A. Albrecht, Die vergessene Freiheit (Berlin 2003).

2. The Legal Approximation of the Fight against Regular Serious Crime

The Protection of the Euro against Counterfeiting Ciro Grandi 1 Criminal law assistant, Faculty of Law, University of Ferrara, Italy

In 1925 France became the victim of a large-scale falsification of its own currency in Hungary; as a result of the following investigation, the perpetrators were arrested in the Netherlands and prosecuted in Hungary, where they were eventually treated with surprising leniency. Due to the exceptional scale of the crime, the deplorable behaviour of the Hungarian authorities and the political weight of the country affected, it was clear that the time had come to deal with counterfeiting at an international level. As a matter of fact, protection against currency counterfeiting operating merely within state boundaries had already proved to be insufficient;2 therefore, along with the initiative of the French government, as early as 19293 a number of States signed the International Convention for the Suppression of Counterfeiting Currency in Geneva, which laid down certain rules for implementing a supranational fight against the falsification of money. After more than 70 years, the realization of the single European currency is a milestone that is likely to draw counterfeiters’ attention to new possibilities and potential earnings for their illicit activities performed on an international level. As a result, the Member States have thought it convenient to improve the traditional legislation of money counterfeiting in order to grant the single currency with proper legal protection. The present study is divided into two parts: in the first part, the main notions concerning the interests harmed by money counterfeiting will be examined; afterwards, an outline of some Member States anti-counterfeiting legislation will be provided in order to analyse the importance of the Geneva Convention in the harmonization process. 1  This work is the outcome of a period of research at the University of Utrecht, financed by the Wiarda Instituut (January-July 2002); the author would like to express his gratitude to Prof. J.A.E. Vervaele for his precious help and advices. 2  See P. Batbie, De la répression du faux monnayage (Toulouse 1936) p. 106. 3  International Convention for the Suppression of Counterfeiting Currency and Protocol, in League of Nations – Treaty Series, 1931, p. 372.

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In the second part, the new need for protection specifically connected with the introduction of the euro will be analysed; then the focus will be on the provisions adopted in the fundamental Framework Decision of 29 May 2000;4 in conclusion some considerations de jure condendo will be put forward.

1. Fundamental Elements of the Traditional Discipline of Money Counterfeiting 1.1. – Money counterfeiting has always been considered under national legal system as an extremely serious offence, able to harm a number of important, vested both in individuals and super-individual entities. Over the centuries, it has often been punished as a crimen lease majestatis since it affects one of the very exclusive powers of a sovereign authority, namely the power of money issuance.5 Nonetheless, as it will be discussed in the next section, modern legislators and literature have dropped the age-old concept of crimen lease maiestatis and focused mainly on the essential role played by money in contemporary trade and, as a consequence, on the damaging potential of counterfeiting on the public confidence in cash as a means of payment. On the other hand, the pecuniary interest of the person who receives a fake note or coin in good faith has always been considered marginal given the prevalence of the aforesaid super-individual interests. However, the most peculiar feature of the illicit at stake is the irrelevance of the locus commisi delicti on the gravity of the conduct; national laws have subsequently abandoned the principle of territorial application of criminal law (in favour of the principle of universality or the principle of defence) in order to punish money counterfeiting when performed abroad. Indeed, the need for a punitive system that also works outside national borders concerns primarily those involved in the traditional named “money counterfeiting”; which is to say behaviour such as the fabrication, the importation, the exportation, the transport, the selling and the uttering of forged money. Nevertheless, numerous other activities are somehow linked to the phenomenon of “money counterfeiting”, interpreted in a broad sense: for example the behaviour of the person who receives forged money in good faith and hands it in to the authorities after having recognized its nature; or the lack of care of the bank 4  Council Framework Decision of 29 May 2000 “on increasing protection by criminal penalties and other sanctions against counterfeiting in connection with the introduction of the euro”, in OJ L 140, 14 June, 2000, p. 1. 5  Due to this concept, counterfeiters have been punished throughout history by means of extremely severe sentences, including the death penalty, execution with torture and public exposure; see, R. Rowell, Counterfeiting and Forgery. A Practical Guide to the Law (London 1986) p. 6; J.A.E. Vervaele, ‘Counterfeiting the Single European Currency (Euro): Towards the Federalization of Enforcement in the European Union?’, 8 The Columbia Journal of European Law (2002) p. 151.



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employee who happens to handle forged money and does not report it to the authority; or the violation committed by the printers and copying machines production company which does not provide its goods with the mandatory anti-counterfeiting devices. All these actions are precedent or subsequent and in some way accessories to the “central” activity of producing false banknotes or coins and they all facilitate the counterfeiter’s objective of circulating forged money. Nonetheless, there is an evident disparity of gravity between these actions and the aforesaid behaviour that constitutes the “core” of money counterfeiting. Therefore, although an efficient protection system for the euro cannot ignore any conduct that may help the counterfeiter’s plan, only the most serious acts of counterfeiting will constitute the object of this study given that the urgent need for harmonization and for improvement of the punitive system have been specifically concerned with the aforementioned groups of conduct. 1.2. – As indicated above, the severe sanctions against money counterfeiting are justified by the importance of the interests affected by the crime in question. The task of this section is to analyse in more detail what these interests are, according to the legal literature and legislation pertaining to different European legal systems If we consider the last action of the counterfeiter’s criminal plan – the passing of a forged note or coin to an individual who accepts it in good faith – we might deem that immediate harm is caused to the property of the deceived person, who exchanges a good or a service of his own with something worthless. Therefore, we might conclude that property is the interest affected by counterfeiting; if this is the case then this offence should be punished as a crime against property such as theft, robbery and fraud. However, this is obviously a superficial and raw analysis that is not shared by the European legal literature, regardless of the national context in which the offence in question is considered. On the contrary, the idea that counterfeiting does not only affect the pecuniary interest of the person who receives the counterfeit money, but, most importantly, harms supra-individual interests is dominant. In the Italian doctrine,6 some commentators underline that money falsification affects public confidence in the sense that it deceives, and takes advantage of, the general belief and trust on the reliability and genuine nature of some documents or securities (in this specific case, money).7 For a general overview of the numerous, but rather homogeneous, opinions in the Italian literature regarding the interest affected by money counterfeiting, see A. Cristiani, ‘Fede pubblica (delitti contro la)’, 7 Novissimo digesto Italiano (JAHR), p. 172. 7  See A. Fais, ‘Falsità in monete e carte di pubblico credito’, Enciclopedia del diritto, vol. XVI, p. 606. 6 

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Others hold that sanctions against counterfeiting safeguard the general interest in the quickness and security of monetary exchanges, which are the basis for contemporary trade.8 In their turn, monetary exchanges are based on the general confidence of operators over the authenticity of money. Hypothetically, in a world where this confidence is low, due to the high percentage of false money in circulation, trade would be much slower and more insecure. In line with another opinion, money counterfeiting is a reato plurioffensivo, which is to say a crime that affects more than one interest; in addition to public confidence, there is the financial interest of the entities having the exclusive right to coin money and who are therefore affected by the crime in question.9 With regards to this view, in spite of the fact that the Italian Criminal Code places money counterfeiting as a crime against public confidence, some of the literature holds that the prime interest underlying this discipline is the State’s concern about preserving the monopoly of money issuance and uttering.10 Another opinion that should be noted, even if it is quite old, holds that since the discipline laid down by the Italian Code also applies to the falsification of foreign currencies, public confidence in the authenticity of money is an interest that has an international dimension.11 Each of the aforesaid opinions concerning the protected interests of money forgery punitive system corresponds to some opinions expressed within the legal context traditionally similar to the Italian one. As a matter of fact, both in the German and in the Spanish legal theory some views underline the damage to public confidence in the authenticity of the means of payment and to the security of trade while others stress the damage to the State’s monopoly on money issuance.12 With regards to the British theory, its peculiar practical-empirical approach to legal institutes makes it impossible to carry out a comparison with the results achieved in the scientific context of civil law. However, whenever the AngloSaxon literature has analysed the interests underlying money authenticity, the 8  G. Fiandaca, E. Musco, Diritto Penale. Parte Speciale (Bologna 2002) vol. I, p. 538; C. Fiore, ‘Il falso autorizzato non punibile’, Archivio penale (1960) p. 312. 9  See F. Antolisei, Diritto penale. Parte speciale (Milano 1986) p. 567. 10  See G. Neppi Modona, ‘Falsità in valori di bollo e in biglietti di trasporto’, Enciclopedia del diritto, vol. XVI, p. 622. 11  See C. Saltelli, E.R. Di Falco, Commento teorico-pratico del nuovo codice penale (Roma 1940) p. 593. 12  For a very concise overview of the theories expressed in the German literature concerning the rechtsgood of the crimes of Geld- und Wertzeichenfälschung, see K. Lackner, Strafgesetzbuch mit Erläuterungen (Monaco 1993) sub art. 146, p. 788; A. Schönke, H. Schröder, Strafgesetzbuch. Kommentar (Monaco 1991) sub art. 146, p. 1204; for Spanish literature concerning the bien jurídico protegido in the crimes of falsificación de moneda see C. Villacampa Estiarte, in G. Quintero Olivares, J.M. Valle Muñiz, eds., Comentarios al Nuevo Código Penal (Pamplona 1996) sub Titulo XVIII, Capitulo I, p. 1703.



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awareness of the serious and multi-directed damaging power of the crime in question has always been evident.13 1.3. – On the basis of the considerations mentioned in the previous section, it can be unquestionably stated that money counterfeiting affects interests of high relevance. Therefore, the severe punitive system traditionally provided for the crime in question, characterised by the primacy of custodial sentence, seems to be legitimate. We will now briefly outline the main features of the discipline of money falsification in four EU Member States (Italy, Germany, Spain and France),14 in order to illustrate how not only the legal literature in question but also the legislation in force is characterised by a high degree of homogeneity.15 In the Italian Criminal Code of 1930, the offences in question are punished under arts. 453–466, which describe in detail all the conduct pertaining to the “core” of money counterfeiting. Art. 453 severely16 punishes the following behaviour: – counterfeiting of national or foreign money which is legal tender in the State or abroad; – the alteration of authentic money in order to give it the appearance of a greater value;17 – the introduction, the holding, the spending and the uttering of counterfeit or altered money; – the purchase or the receiving of counterfeit or altered money. Art. 456 lays down a very important aggravating circumstance, which applies when the illicit conduct determines a reduction of the value of the currency or bonds of the State, or jeopardises its credit in domestic or foreign markets. This norm confirms the opinion according to which the State’s interest in maintaining the value of its own currency enjoys a particular regard in the discipline of money counterfeiting.18 13  See Law Commission n. 55, 17 Luglio 1973, in Law Commission Series (Londra 1973); R. Rowell, op. cit. 14  For a complete analysis of the anti-counterfeiting legislation of the EU Member States see the study carried out by the European Central Bank, entitled Report on the Legal Protection of Banknotes in the European Union Member States, in http://www.ecb.int/, link Publications. 15  It is convenient to say in advance that the harmonisation of illicit conduct is a direct effect of the enforcement of the Geneva Convention of 1929. However, the main provisions of this Covenant concern the international dimension of the fight against the crime in question; therefore the analysis of the Convention will be carried out in a later section of this work, together with the need for international cooperation against money forgery. 16  With the custodial sentence from three to twelve years plus a fine between 516 and 3,098 euro. 17  The alteration of money in order to diminish its value is also punished but with a lower sentence (imprisonment from one to five years plus a fine between 103 and 516 euro). 18  See F. Antolisei, op. cit., p. 578.

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The rigor of the Italian system also comes from arts. 460 and 461, which define as completed offences such acts that, in the absence of these provisions, could constitute, at most, attempted crimes. Art. 460 punishes the counterfeiting of watermarked paper used to produce money and the purchase, holding and transferring of such counterfeit;19 art. 461 penalises the production, the purchase, the holding and the transferring of watermarks and other instruments solely intended for the production of counterfeit money.20 What is more, one of the conducts indicated as being of a more innocent nature, that of passing on counterfeit received in good faith, is regulated as a criminal offence, even if art. 457 provides for a leniency.21 Finally, it is interesting to examine art. 463, which excludes the punishment for anyone who, having committed an offence of counterfeiting, succeeds in preventing the counterfeiting, alteration, manufacture or circulation of the forged money before the authorities are informed. This is the ultimate resource of the order, after the criminal provisions have failed, their preventative scope is to impede the uttering of false money by offering the counterfeiter a possibility to avoid punishment provided he eliminates the danger created by the act of forging.22 With regards to the German system, in the Strafgesetzbuch money falsification is punished under chapter eight (Geld- und Wertzeichenfälschung).23 The fundamental provision is art. 146 StGB, which punishes a list of acts, counterfeiting and alteration of money and purchase of false money with the intent of uttering and putting into circulation of counterfeit, which are very much analogous to the behaviour outlined under art. 453 of the Italian criminal code.24 On the other hand, art. 149 StGB penalises those preliminary acts that precede counterfeiting such as the production, the purchase, the holding or the selling of plates, frames, watermarks and other instruments necessary for counterfeiting. Another similarity with the Italian system can be found under the second paragraph of art. 149 StGB, which excludes the application of the sentence in case the offender renounces the completion of the crime or prevents The sanction for this conduct is a prison term from two to six years and a fine from 309 to 1,032 euro; 20  These acts are punished with a prison term from one to five years and a fine from 103 to 516 euro. 21  The prison term up to six months or a fine up to 1032 euro. 22  In the Italian criminal law this mechanism of incentive is often implemented; see Padovani, ‘La soave inquisizione’, 24 Rivista italiana di diritto e procedura penale (1981) p. 529. 23  For a more extensive analyses see J. Vogel, ‘The Legal Protection of the Euro in Germany’, in J. van der Hulst, ed., Euro Fraud. The Legal Protection of the Euro in the European Union (Rotterdam 2002) p. 73. 24  The sanction is the imprisonment for not less than one year; if the offence is committed by a professional counterfeiter or by a gang, the term shall not be less than two years; in less serious cases these sanctions are reduced under par. 3 art. 146 StGB. 19 



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others from completing it, if he destroys the counterfeiting devices or reports their existence to the authorities.25 Under the Spanish Codigo Penal, money counterfeiting is regulated by chapter I (De la falsificación de moneda y efectos timbrados), title XVIII (De las falsedades) of the special part.26 Art. 386 first paragraph lays down severe sanctions27 for the falsification of money, introduction of false money in the country and for the expenditure or uttering of false money in relation to the counterfeiters. The second paragraph punishes the holding or the purchase of counterfeit money with the intent of uttering.28 The third paragraph of art. 386, in line with art. 457 of the Italian code, defines as a criminal offence the passing of false money by a person who received it in good faith (but the offence is punishable only when the apparent value of the counterfeit is more than 300 euro).29 Finally, with reference to preliminary acts, art. 400 Codigo Penal provides for whoever produces or holds watermarks, plates, instruments and other instruments necessary to counterfeit money, the same punishment set for the act of counterfeiting. Turning now to the French system, the provisions of chapter II (De la fausse monnaie), title IV (Des atteintes à la confiance publique) of the Penal Code sets down a system of sanctions characterized by exceptional severity.30 Art. 442-1 provides for the conduct of falsification with a custodial sentence of up to thirty years and a fine of up to 450,000 euro. According to art. 442-2, the acts of transport, uttering and holding of counterfeit are also severely punished;31 what is more, where these acts are performed by a bande organisée, the maximum penalty is the same as that established under art. 442-1. Furthermore, art. 442-5 penalizes, with less rigor, the preliminary acts consisting of the use and unauthorized

25  This cause of non-punishability applies even if the realization of the crime is hindered because of other factors, different from the author desistance; in this eventuality, the efforts of the perpetrator shall suffice to exclude the sentence. 26  A complete overview of the Spanish system is provided by A. Garrido Fernandez, ‘The Legal Protection of the Euro in Spain’, in J. van der Hulst, ed., op. cit., p. 107. 27  The prison term from eight to twelve years and a fine amounting to ten times the apparent value of the counterfeit. 28  For these acts the sanctions provided by the first paragraph are reduced by a third up to a half, according to the apparent value of the counterfeit and the intensity of collaboration with the counterfeiters. 29  The punishment for this act is lenient: the judge may impose imprisonment from nine to twelve fines de semanas and a pecuniary sanction from six to twelve months (art. 37 Codigo Penal disciplines the arresto de fin de semana, a custodial sentence to be executed only on Saturdays and Sundays; art. 50, in its turn, states that the measure of pecuniary sanctions is to be determined in diarie – daily allowances – being up to the judge to fix both the number of allowances and the amount of each of them). 30  See, amplius, V. Dervieux, B. Pesquié, ‘The Legal Protection of the Euro in France’, in J. van der Hulst, ed., op. cit., p. 93. 31  This behaviour is punished with a term of imprisonment up to ten years and a fine up to 150,000 euro.

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holding of materials and devices adapted for the falsification of money.32 More similarities with other European legal systems can be found in the French anticounterfeiting legislation: for example, the decision to consider the passing of false money received in good faith as a criminal offence (art. 442-7);33 or the exemption of a prison sentence for the person who, after having attempted to perform the crime, cooperates with the authorities in such a way as to prevent its realization and to identify the accomplices (art. 442-9). On the basis of the previous concise analyses it can be reasserted that the criminal provisions of European legal systems concerning money counterfeiting are broadly homogenous, with reference both to the illicit conduct and to the use of severe penal sanctions, although some differences still exist as regards the sanctions entity. 1.4. – As stated, previously the peculiar element of money counterfeiting is the lack of influence of the locus commisi delicti on the harmful potential of the illicit conduct: in fact, it does not matter where the falsification has taken place, once the counterfeit has been put into circulation. This straightforward consideration has led national legislators to set aside the principle of territorial application of criminal provisions with regards to currency counterfeiting and to adopt the principle of safeguarding the protected interest, or the principle of the universal application of criminal law.34 As an example of the first principle, art. 7 of the Italian Criminal Code provides that “a citizen or alien who commits any of the following offences in foreign territory shall be punished according to Italian law:…3) crimes of counterfeiting money which is legal tender in the territory of the State, or duty-bearing paper…”. In the same way art. 23, paragraph 3, Ley Organica del Poder Judicial states that Spanish jurisdiction also concerns those acts committed by citizens or foreigners outside national borders, when, according to Spanish law, they give rise to a list of specific crimes, which includes counterfeiting of Spanish currency. In line with the second principle, some legal orders prosecute money counterfeiting wherever it is performed and whatever currency is forged. Art. 6 Strafgesetzbuch establishes that German criminal law is applicable, regardless of the law of the loci commisi delicti, for a list of offences committed in foreign territory, among which, according to number 3 of the provision in question, counterfeiting money and preliminary acts thereto. Correspondingly, art. 17 Loi

In this case the term of imprisonment is up to one year and the fine is up to 15,000 euro. For this less serious illicit the sanction is the fine up to 7,500 euro. 34  Under art. 7.2 of the Framework Decision 29 May 2000 (see note 4, supra) all the Member States must establish the principle of universal jurisdiction in relation to counterfeiting of the euro; see B. Mejborn, ‘The Protection of the Euro against Counterfeiting’, in G. de Kerchove, A. Weyembergh, eds., Vers un espace judiciaire pénal européen (Bruxelles 2000) p. 276. 32  33 



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2001-116835 provides that French criminal law also applies to the counterfeiting offences defined under arts. 442-1, 442-2, 442-536 of the Code Penal when they are performed abroad. Although the adoption of such principles allows prosecution of currency counterfeiting wherever the illicit conduct takes place, from a practical point of view this is not enough to enforce an efficient protection system. As a matter of fact, the application of criminal provisions requires the perpetrator’s presence in the State territory, or the commencement of an extradition procedure: the first option hardly ever occurs because extradition entails a number of obstacles and delays. Therefore, the episode of French currency falsification in Hungary laid bare all the negative aspects of a counterfeiting punitive system still limited to national instruments, even though their applicability tended, in theory, to overcome national borders. However, the issue, from that moment, was the need for legislation regarding money falsification that would not make any distinction between national and foreign currencies: not only the utilitarian do ut des principle, which often underpins international conventions, but also several considerations pertaining to criminal policy, which were highlighted by the coeval legal literature that called for this form of legislation. Indeed, the necessity of non-discriminating legislation for money counterfeiting had already been hypothesised by the Romanian jurist Vespasien Pella, in the essay published in 1927,37 which constituted the ground for the signing of the Geneva Convention. In spite of its age, the contents of this study fit surprisingly well in the modern setting to the extent that they could still form the theoretical basis for a workable fight against money forgery. The results achieved by the European legal theory that in following decades speculated on the interests affected by currency falsification were largely anticipated. Pella defined money counterfeiting as a crime complexe with regards Loi 2001-1168, 11 December 2001, in Journal officiel, 12 December 2001. See section 5, supra. The provisions quoted in the text make reference also to the “… pièces de monnaie ou des billets de banque ayant cours légal en France ou émis par les institutions étrangères ou internationales habilitées à cette fin”. 37  V. Pella, ‘Le cooperation des Etats dans la lutte contre le faux monnayage’, 34 Revue general de droit international public (1927) vol. I, p. 673. Pella pointed out, next to counterfeiting de droit commun, determined by motive of gain, two other species of the offence in matter: counterfeiting as a political offence and counterfeiting as a delit interétatique (loc. cit., p. 746). The former is used as a tool to attack the established institutions, as opposed to the traditional violent forms of political terrorism; the latter is committed by the citizens of a given State, enjoying the immunity granted by (or even under the leadership of) their own Government, against the currency of an the enemy. Pella also foresaw the use of money falsification as a nouveau moyen de terrorisme, having an even more dangerous damaging power than the conventional terrorist attacks. In addition to the harmonization of substantial law, Pella also proposed the institution of a chamber criminelle of the International Court of Justice in The Hague, with jurisdiction on money counterfeiting wherever it is performed (loc. cit., p. 756). 35  36 

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to the intèrêts lésés; he did refer to the pecuniary interests of individuals, but he pointed out that counterfeiting primarily harms the monetary sovereignty of the States and the development of economic relationships, which are based on the common confidence about the authenticity of money. However, the most important intuition was that the crime in question does not only jeopardize the public order of the State where the crime is performed and of the State whose currency is forged, but also negatively influences the trust in the money as a means of international exchange and economic cooperation; therefore “… le faux monnayage … rentre dans la catégorie des actes délictueux qui portent atteinte à l’ordre public universel”.38 In other words, because of the peculiar role played by money in national and international trade, and because of the economic interdependence that closely ties national markets, the counterfeiting of even one single national currency could jeopardize other States’ interests as well. For that reason, the lack of protection of foreign currencies entails a lack of protection of the State’s own national interests. These considerations were particularly significant at a time when certain national systems punished foreign money counterfeiting with lower sanctions, while others did not punish this conduct at all.39 After all, if States did not punish the counterfeiting of foreign currencies, the perpetrators could almost certainly enjoy immunity; in such a scenario the principle of universality or the principle of the protection of the affected interest, already hindered by the inefficiencies of the extradition system, would find a further obstacle in the requisite of the double incrimination. In addition, there were other motives for a supranational strategy against counterfeiting; first of all, the awareness that the crime in question is largely performed by organized crime operating in different States; then, the possibility that the lack of harmonization could bring about forum shopping by counterfeiters. Furthermore, the decision not to protect foreign currencies would constitute a

Ibidem, p. 675. Lower sanctions for foreign money falsification were laid down for example, by the French Criminal Code, by the British Coinage Act 1861, by the Belgian Criminal Code; on the other hand, no sanctions were provided for under the Romanian Code and under some Swiss Canton’s Codes; see E. Fitz-Maurice, ‘Convention for the Suppression of Counterfeiting Currency. An Analysis’, 26 American Journal of International Law (1932) p. 540; V. Pella, loc. cit., p. 691. These options were consequence of the old-aged concept of money counterfeiting as a crimen lesae maiestatis, according to which the only interest harmed would be the State monopoly over money issuance; in this view, in fact, a discrimination between national and foreign currency could be legitimate. However, already in the twenties there existed some Criminal Codes which did not enforce such discrimination (e.g. Italian Criminal Code 1889). As a result of the adoption of the Geneva Convention, the principle of non-discrimination had to be implemented in the systems of all the signing parties, since it was laid down in one of its fundamental provision (Art. 5); then, the Council Framework Decision of 29 May 2000 (cit., note 4, supra) obliged the Member States that had not yet done so to accede the Convention, so that the principle in question would be part of the orders of all the EU countries (see section 10, infra). 38  39 



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breach of the principle which supersedes international relationships amongst nations, the principle of solidarity.40 The validity of the aforesaid political and law enforcement motives, together with the concern caused by the Hungarian episode, created the ideal context for the adoption of a covenant which represented the first defence of international community against money counterfeiting. 1.5. – After the lenient sentences imposed by the Tribunal of Budapest in the case of the well-known French currency counterfeiting incident, the French Government urged the League of Nations to act in order to adopt an international convention against money counterfeiting. An experts’ committee41 was subsequently established, which used the essay of Professor Pella as the basis of the scientific discussion; the draft convention was presented to the Council of the League of Nations in December 1927. One and a half years later, a diplomatic conference was held in Geneva and representatives of 35 States member states participated. On 20 April 1929, the Convention for the Suppression of Currency Counterfeiting was signed.42 The Act at stake includes both substantial and procedural law provisions as well as rules intended to strengthen cooperation between judicial, police and administrative national authorities. In this analysis, a particular interest is presented by the following provisions: a) the harmonization of national criminal rules concerning money counterfeiting (Art. 3); b) the principle of non-discrimination between national and foreign currencies (Art. 5); the rules to determine the jurisdiction (Arts. 8–9). a) Article 5 meant to harmonize national disciplines of money counterfeiting by imposing the incrimination of the following conducts: – any fraudulent making or altering of currency, whatever means are employed; – the fraudulent uttering of counterfeit currency; – the fraudulent introduction into a country or the receiving or obtaining of counterfeit currency with the view to uttering the same; – the attempt to commit the foregoing acts and any intentional participation. – the fraudulent making, receiving, or obtaining of instruments or other articles specifically adapted for the counterfeiting or altering of currency.

See V. Pella, loc. cit., p. 694. The Mixed Committee for the Suppression of Currency Counterfeiting was formed by international criminal law experts, officials of national public prosecutors, representatives of national banks and the financial committee of the League of Nations. 42  The law-making process of the Convention is analysed by P. Batbie, op. cit., p. 109; E. FitzMaurice, loc. cit., p. 533. 40 

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The wide-ranging homogeneity of the national descriptions concerning money falsification is a direct consequence of the enforcement of the provision in question, which bound the signing States to punish with criminal sanctions the fundamental conduct related to counterfeiting. It is interesting to underline that Art. 3 states the aforesaid acts have to be punished as ordinary crimes: this is the compromise between two different opinions that emerged during the diplomatic conference.43 According to the first opinion, money counterfeiting should in no case be considered as a political offence, in order to exclude any lenient measure usually connected with such a qualification, especially with regard to the extradition system. According to the second opinion, supported by the States that wanted to uphold discretion in determining whether a crime is political or not, in case of particular circumstances (such as political revolts, revolutions et cetera) money counterfeiting could be considered as such. The compromise implemented by Art. 3 provides that, as a general rule of national law, money counterfeiting has to be punished as an ordinary crime. Nevertheless, as far as international obligations are concerned, there is the possibility of attributing relevance to the political motive that drove the counterfeiter of foreign currency and consequently to grant him asylum.44 b) Art. 5 states the principle of non-discrimination between national and foreign money: this provision prohibits any difference in the sentencing systems provided for the conduct described under Art. 3, which is grounded on the nationality of the currency.45 The implementation of the rule in question made it possible to remove the inefficiencies of a system where, as has been said, in some legal systems the conduct of counterfeiting was punished less harshly, or was not punished at all, if the object was a foreign currency. Therefore, the gaps in currency protection were filled, even though the persistent differences in the entity of the sanctions could still cause forum shopping. c) Arts. 8–9 take into consideration the eventuality that the offender, after committing counterfeiting in the territory of a given State, seeks immunity in the territory of another country. This is one of the aspects in relation to which the system before the Geneva Convention was manifestly ineffective: beside the differences in the protection of national and foreign currencies, there were many variations regarding the punishability and/or the extraditionability of the P. Batbie, op. cit., p. 145; E. Fitz-Maurice, loc. cit., p. 544. See J.W. Garner, ‘International Convention for the Suppression of Counterfeiting’, 24 American Journal of International Law (1930) p. 35. 45  The proposal put forward by the Belgian representative to apply the principle in question only to the currencies of the signing States was rejected so as to implement the most comprehensive protection system possible. 43  44 



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citizens who had committed an offence abroad: some countries did not punish the citizens but allowed their extradition; in some countries the rule was the opposite way around. Uncertainty and dissimilarities existed also with regards to the foreign offender who had committed a crime abroad and was arrested inside the national borders. Given so many differences in relation to the territorial application of criminal law and the institute of extradition, and being nearly impossible to find a theoretic principle compatible with the dissimilar solutions adopted by the legal orders of the signing States (principle of territoriality e.g. in the common law systems, principle of universality e.g. in Chinese and German criminal law),46 the experts’ committee undertook a practical approach: the concrete aim was to prevent the offender from obtaining immunity by simply pleading to the jurisdiction. Art. 8 provides that in the countries where the principle of the extradition of nationals is not recognized, nationals who have returned to the territory of their own country after committing an offence abroad referred to in Art. 3 should be punishable in the same manner as if the offence had been committed in their own territory. Art. 9, in its turn, provides that foreigners who have committed an offence of counterfeiting abroad, and who are in the territory of a country whose internal legislation recognizes as a general rule the principle of prosecution of offences committed abroad, should be punishable in the same way as if the offence has been committed in the territory of that country47: in other words, when a legal order provides for a list of crimes that are punishable even if committed abroad, then money counterfeiting shall be part of that list. Considering these two provisions in conjunction, a general tendency to assimilate the crimes committed abroad to that of those committed within the boundaries of the country emerges; and, as a consequence, the implementation of a principle close to the universality of criminal law. At the end of this short analysis of the main articles, it can be argued that the Geneva Convention brought about a considerable improvement of the system against counterfeiting currencies, and it symbolized a significant forerunner episode of the current trends to the unification or, at least, to the harmonization of national criminal law. First of all, the coeval legal literature already maintained that “future codification of criminal law lies along the lines of modification of general practice in respect to particular offences, rather than wholesale modification of practice in respect to all offences”48: thus, while the harmonization of the illicit conduct did not cause significant problems, the solution regarding general institutions See E. Fitz-Maurice, loc. cit., p. 541; V. Pella, loc. cit., p. 728. In this case, however, the obligation to take proceedings is subject to the condition that the extradition has been requested, but the requested country cannot hand over the accused person. 48  E. Fitz-Maurice, loc. cit., p. 551. 46  47 

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such as the territorial application of criminal law or the extradition system came about after several attempts and compromises. Moreover, particular attention was dedicated to the institutions of administrative authorities for the coordination of the investigation and for the collection and storage of relevant data on counterfeiting: from this point of view, the system laid down under arts. 12–18 is extremely advanced, and deserves appropriate consideration that cannot be paid in this study. Additionally, the positive outcome of the coming into force of the Covenant reinforced the belief that a workable response to the phenomenon of internationalization of crime necessarily passes through the internationalization of the punitive system and the consequent overcoming of the traditional monopoly of the State over criminal law. With the arrival of the single European currency, as will be explained, the reasons for the reinforcement of the common supranational strategy against money counterfeiting grow in number and significance.

2. The Consequences of the Introduction of the Euro 2.1. – After having outlined the main features of the punitive discipline of money counterfeiting, we will now take into consideration what peculiarities distinguish the falsification of the single European currency. First of all, the effects of the introduction of the euro that may increase the risk of money falsification will be pointed out. Secondly, we will analyze what are the peculiarity of the interests underlying the authenticity of the single currency. Then, the focus will be on the Council Framework Decision 29 May 2000, which represents the most relevant supranational act in the matter of counterfeiting after the Geneva Convention. After that, we will assess the inefficiencies of the current anti-counterfeiting system, drawing a distinction between those related to the content of the said Framework Decision and those related to the use of the instrument of the Framework Decision itself. Finally, some considerations de jure condendo intended to improve the system in force will be suggested. 2.2. – During the last years before the introduction of the euro, the alert for the possible counterfeiting activities had been progressively increasing; it was clear that, as always happens when a currency is re-designed, and, a fortiori, when a new currency is introduced, the possibilities of success of a counterfeiting operation are higher, due to the low familiarity of the public with the new appearance of banknotes and coins.



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However, with specific regard to the euro, there were (and there are still, even though the early statistics are satisfactory49) further reasons for concern which have been clearly described in a study carried out by the European Central Bank about the anti-counterfeiting legislation in the EU Member States, were published in 199950: in this study the inefficiencies of the system at that time in force were identified and several proposals of amendments were suggested. Four different factors were considered: The geographic area in which counterfeits can be distributed and circulate will be larger than at present. Euro banknotes may be used not only within the euro area, but are also likely to be used in the non-participating Member States and in third countries. As a consequence, the overall risk of detection and conviction might also be smaller than it is at present.

Beyond the obvious fact that the euro will circulate in a much wider area than national coins, the European currency could have an even broader area of usage: in fact, it could constitute an alternative to the dollar for many that seek a second currency as a store of value or as a means of international transaction51: according to the ECB, the central banks belonging to the ESCB frontloaded in December 2001, 26 central banks or specialized institutions outside the euro zone with some 4 billion euro; the eastern European countries that were hoarding and using German notes as a second currency had been switching to the euro for years.52 This large usage makes euro counterfeiting a more profitable business than counterfeiting of national currency; at the same time, the existence of a single currency will lead to the concentration of the whole criminal activity against just one object; [A]s a result of new reproduction techniques (such as advanced colour copying machines and home office equipment), it will be easier to produce counterfeit banknotes that may be mistaken for genuine ones, especially if, during the initial period, the visible/tactile security features are not sufficiently known and properly checked by the public at large.

49  See the Commission communication to the Council, 6 March 2002, Review of the introduction of euro notes and coins, COM 2002/124, http://europa.eu.int/comm/economy_finance/publications/ eurorelated_en.htm, p. 15; for the situation in Italy see the Rapporto Statistico sulla falsificazione dell’euro (January-August 2002) published by the Ufficio Centrale Antiflasificazione Mezzi di Pagamento (UCAMP), Treausry Department of the Ministry of Economics, on the web page http://www.dt.tesoro.it/Aree-Docum/Antifalsif/, link Rapporti Statistici. 50  Report on the Legal Protection of Banknotes in the European Union Member States, cit. Each direct quotation in the text is taken from page 11 of the Report. See also A. van Veldhoven, Risk and Opportunities of the Introduction of the Euro, in Van der Hulst, ed., op. cit., p. 63. 51  See the report on The use and counterfeiting of United States Currency Abroad, published by the United States Department in January 2000. 52  See Communication from the Commission to the European Council of 6 March 2002, Review of the Introduction of Euro Notes and Coins, COM (2002) 124 final, p. 16; Council Regulation 1338/2001, OJ L 181, 4 July 2001, p. 6, whereas (15).

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Furthermore, until the eighties, counterfeiting required special equipment, expensive, accessible only to acknowledged operators and easily traceable, since its purchase by individuals could cause suspicion; during the last decades high-quality colour reprographic systems have became cheaper and cheaper, easy to use, wide-spread among the public and therefore almost untraceable. All these elements make the number of potential counterfeiters thousands of times higher than in the past: it is almost possible for anyone to try counterfeiting.53 [T]he legal structures and provisions against counterfeiting in the Member States are not identical, which, under a single currency regime, might lead to an increase in counterfeiting (although it is questionable whether and, if so, to what extent existing differences in the relevant legal structures of Member States would in fact lead to an increase in the number of counterfeits after the introduction of euro banknotes).

This negative feature of the system in force in 1999, has been partially resolved with the adoption of the Council Framework Decision of 29 May 2000, which has brought about a harmonisation of the prohibited conduct related to counterfeiting and relative sanctions.54 [S]ince the euro banknotes will be new and unfamiliar to the public, there is a risk that counterfeit banknotes will not be recognized as such.

This is the risk that any introduction of a new currency entails. The “unfamiliarityfactor” is likely to assume an even greater relevance as regards euro coins, since they will “have a common tail but national heads, implying that in theory 120 variations of the euro coin could be in circulation at any given time within the euro zone”.55 Another legitimate reason of concern is based on the fact that the ECB is producing 500 euro notes (worth 455 dollars), a far larger denomination than is available in other currencies. According to some opinions, this would be an advantage for organized crime, including counterfeiters56: the profit of counterfeiting a single note of this kind will be much higher than any other; in addition, it will be much easier to transport large values. Beside these motives for concern, which are “structurally” typical of any currency switch-over, there exists another one, of a conjunctural nature, related to the present instability of the international political scene and to the new violent wave of terrorist attacks. Therefore, we need to look back once again at 53  See R.E. Schafrik, S.E. Church, ‘Protecting the Greenback’, 256 Scientific American (1995) p. 40; M. Guttman, ‘High-tech Counterfeiting’, US News & World Report (5 December 1994) p. 72. 54  See section 10, infra. 55  See J.A.E. Vervaele, loc. cit., p. 164. 56  See ‘Unveiled. The Euro Area’s New Banknotes are Ready. But are the Europeans?’, The Economist (1 September 2001) p. 61; J. Kurlantzick, ‘The Great Euro Heist’, U.S. News & World Report (31 December 2001) p. 20.



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Professor Pella’s report, and, in particular, to the distinction between the three forms of money counterfeiting. As we have already said, money counterfeiting as a delite interetatique, is the falsification of foreign currency perpetrated by citizens of a State, enjoying the immunity granted by their own Government. In the light of recent events, the possibility should not be underestimated that money forgery could be used as nouveau moyen de terrorism,57 a new tool for terrorism, whose destructive power towards the economy of the victim country would be superior to any traditional form of violent terrorism. The large financial resources of the extremist groups would allow them to provide for the most sophisticated facilities, able to deceive even the newest anti-counterfeiting devices. The possible consequences of such a scenario (which is hopefully an unlikely one) call for great attention and for the finding of solutions to the weak aspects of the system in force, namely the relationship with the non member States that are not even part of the Geneva Convention. 2.3. – We come now to the peculiarities of the interest affected by the crime of counterfeiting if committed in euro. All the considerations pointed out by the traditional legal literature regarding the harm caused by money falsification (in general) to the public confidence on the authenticity of currencies and to the quickness and security of monetary exchanges are applicable.58 On the other hand, the falsification of the single currency encompasses particular features with regards to the interest of the preservation of the value of the money and of its reliability on international markets. What makes the monetary union different from the previous system is the existence of one sole entity entrusted with the responsibility of carrying out a monetary policy, the European Central Bank (ECB). As a matter of fact, within the provisions that constitute the framework of monetary union, Art. 105.1 TEC lays down the duties of the European System of Central Banks (ESCB), among which the “primary objective”59 is the maintenance of price stability. Two fundamental alternative monetary policies are given in order to counter inflation and to achieve price stability: pegging the rate of interest, on the one hand, and regulating the quantity of money in circulation, on the other. Both of them are available to the ECB.60 Art 106.1 TEC grants the ECB an immense Pella, loc. cit., p. 746. See section 3, supra. 59  Art. 2 of the Statute of the European System of Central Banks and of the European Central Bank acts as follows: “In accordance with Article 105(1) of this Treaty, the primary objective of the ESCB shall be to maintain price stability…”. 60  See A. Scott, ‘The Macro-economic Context of the Euro’, in P. Beaumont, N. Walker, eds., Legal Framework of the Single European Currency (Oxford-Portland 1999) p. 38; see also the 57  58 

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power: the exclusive right to authorize the issuance of money.61 At the same time, Art. 12.1 of the ESCB Statute imposes upon the Governing Council the duty of formulating a monetary policy, which includes decisions on the key interest rates.62 Indeed, in the event of any large-scale euro falsification, the ECB would lose its control over the supply of money in the market, and its policy aimed at maintaining price-stability would be jeopardized. Therefore, we may conclude that in the new context – in which a single currency has legal tender in twelve member states, and there is just one entity entrusted with the responsibility of carrying out the monetary policy – the effects of any counterfeiting of the single currency would be much more substantial and visible than in the past, since they would affect the efficacy of the institution governing the financial activities and the monetary policy of the Union. In the light of these considerations, we can assume that the authenticity of the single currency belongs to those interests having European relevance (beni giuridici europei) due to their tight link with the European Community and its scope of activity.63 However, it is very difficult to place the single currency in one of the categories of “European interests” pointed out by the legal literature. statement delivered by the ECB President to the European Parliament Subcommittee on Monetary Affairs, 22 September 1998. 61  “The ECB shall have the exclusive right to authorize the issue of banknotes within the Community. The ECB and the national central banks may issue such notes. The banknotes issued by the ECB and the national central banks shall be the only such notes to have the status of legal tender within the Community”. For a brief overview of the main tasks of ESCB and of the implementing powers, see J.A. Usher, The Law of Money and Financial Services in the European Community (New York 2000) p. 216. 62  “The Governing Council shall adopt the guidelines and take the decisions necessary to ensure the performance of the tasks entrusted to the ESCB under this Treaty and this Statute. The Governing Council shall formulate the monetary policy of the Community including, as appropriate, decisions relating to intermediate monetary objectives, key interest rates and the supply of reserves in the ESCB, and shall establish the necessary guidelines for their implementation”. 63  The theory of bene giuridico (protected interest) is not a concept common to every European legal tradition; as is well-known, it has been formulated mostly within the German, the Spanish and the Italian criminal law literature. Therefore the notion of bene giuridico europeo is the result of the application of this traditional “national” category to the new exigencies of prevention and repression that characterize the European context, and not the product of an elaboration carried out together by the entire European law doctrine. For that reason, some inevitable inexactnesses may be found when the legal literature tries to divide the interests having European interests along the different categories of beni giuridici formulated in those national contexts. As a matter of fact, from the inside of the German criminal law literature, some authors are sceptical about the use of the bene giuridico as a parameter to assess the legitimacy of any punitive provision, especially when it is of European origin. However, the lack of a common approach to the issue of the bene giuridico seems to be an unavoidable consequence of the differences that still distinguish the various European legal traditions, and not a consequence of an “ontological” inexistence of interests having European relevance; nor should the lack of such an approach justify putting a part of the category at stake as a fundamental guideline of criminal law policy, or at the supranational level.



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According to the traditional Italian theory, there are two fundamental groups of European interests: the “institutional” interests and the “functional” interests.64 The first group includes the interests that are essential for the existence of the Community, and whose protection by means of proportionate and dissuasive sanctions is necessary to guarantee the survival of the Community itself. This group includes different kinds of interests. First of all, the financial interests of the Community have traditionally been listed under the category of the essential interests, since the budget, defined as ‘the visible sign of a true patrimony common to citizens of the Union’ is the supreme instrument of European policy;65 moreover, any crimes against its financial interests are considered as “directed against Europe” itself.66 Secondly, there is another sub-group of interests that is as essential to the Community as the financial ones: those interests related to the good functioning of EC public administration, especially with regard to the loyalty, fidelity and impartiality of civil servants, whose corresponding national interests are protected through criminal sanctions in the Member States.67 The second is formed by the interests related to the scope of activities of the EC institutions, and, especially, to the four fundamental freedoms of the Treaties. This group includes interests that are not strictly essential for the “survival” of the Community, but whose protection is coherent, consistent and co-essential with the implementation of the common policies provided for under the Treaties.68 See G. Grasso, Comunità europee e diritto penale (Milano 1989) p. 9. G. Grasso, ‘Il Corpus Iuris e le prospettive di formazione di un diritto penale dell’Unione Europea’, in Verso uno spazio giudiziario europeo. Corpus juris contenente disposizioni penali per la tutela degli interessi finanziari dell’Unione europea (Milano 1997) p. 1. 66  M. Delmas-Marty, in M. Delmas-Marty, J.A.E. Vervaele, eds., The Implementation of the Corpus Juris in the Member States (Antwerpen-Groningen-Oxford 2000) vol. 1, p. 11. About the essentiality of the budget, see also F: De Angelis, ‘Il Corpus Juris recante disposizioni penali per la protezione degli interessi finanziari dell’Unione Europea: origini e prospettive’, in Grasso, ed., La lotta contro la frode agli interess finanziari della Comunita‘ Europea tra prevenzione e repressione (Milano 2000) p. 351; F. Tulkens, C. Van Den Wyngaert, I. Verougstraete, eds., La protection juridique des intérêts financiers des Communautés européennes (Antwerpen-Bruxelles, 1992) passim; J. Messinne, B. Bultot, Les instruments juridiques belges de lutte contre la fraude aux intérêts financiers des Communautés européennes (Bruxelles-Antwerpen 2000) passim. 67  This traditional doctrine identifies a third sub-group, formed by the interests related to the material existence and freedom of action of EC bodies, which can be attacked by behaviour that, if directed against national institutions (e.g., Parliament, member of the Government) would be punished under national laws as crimes against the State; but the same author deems this theory deprived of solid ground, see Grasso, Comunità europee, op. cit., pp. 10–11. 68  In other words, Community legislation that implements the provisions of the Treaties, especially those related to the fundamental freedom, prohibits national legislators to adopt rules incompatible with those provisions; on the other hand, it pursues the harmonisation of national legislations that concern the fundamental freedom, by laying down a number of duties, obligations and prohibitions for individuals and companies, whose observation is necessary in order to enforce common policies and to safeguard the individual and collective rights emerging from the Treaties themselves. The member States are generally given the duty to provide community rules with a proper sanctions system, whose characteristics are often described in community acts, sometimes vague and unclear, its specification being left to national legislators. See A. Bernardi, ‘I principi 64  65 

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Nevertheless, with the foundation of the European Union and the enlargement of the set of fields of European Law, this traditional basilar dichotomy seems to be no longer exhaustive. Taking into account this change, a recent theory has put forward a more detailed classification of the interests having European (and no more only Community) relevance.69 Simply put, in line with this doctrine, European legislation safeguards essentially two sets of interests: a) the economic interests that have strictly Community relevance; b) the interests related with the safety of European citizens. a) The first group includes those that constitute the “hard-core” of Community interests. This group includes the intra-national economic interests, whose protection is “functional” to the achievement of the objectives of the Treaties, but they are not essential for the existence of the Community; and the supra-national economic interests, mainly the financial interests, which are inherent “directement à l’existence ou au fonctionnement de l’institution communautaire”.70 b) The second group includes, in accordance with this theory, the emerging interests related to the new European legal system. A first sub-group is formed by the interests to the good functioning of EC public administration, with special regard to the loyalty, honesty and neutrality of EC public employees; these interests are offended by the crimes of corruption and their protection is tightly linked to the defence of financial interests. A second sub-group is formed by the interests related to the European public order, whose safeguard is day by day more urgent, since the fall of national barriers and the enforcement of the freedom of circulation for individuals, goods and money might, to a certain extent, also favour illicit traffic.71 In conclusion, another very new theory has put forward a distinction (not only between national and supranational interests but also) between different categories of supranational interests, in line with the different need of law harmonization they call for.72 According to this doctrine, euro falsification belongs to the group e criteri direttivi in tema di sanzioni nelle recenti leggi comunitarie’, in Annali dell’Università di Ferrara – Scienze Giuridiche, Nuova serie (2000) vol. XIV, p. 70. 69  See S. Manacorda, ‘Le droit pénal et l’Union européenne: esquisse d’un système’, Revue de science criminelle ed de dorit penal comparé (2000) p. 95. 70  Ibidem, p. 100. 71  This doctrine distinguishes two fields of legislation related to the European public order: Community law concerning dangerous materials and substances, which interferes with the legislation about drugs implemented on the basis of Title VI TEU; and the provisions concerning the control over international organized crime, adopted under Title VI TUE as well. 72  According to the different natures of the interest put in danger, there are four different categories of offences:



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of crimes that require a joint punitive reaction in the Union,73 since it harms Community interests having “institutional” importance, comparable to the financial interests. Nevertheless, it is significant that nearly all the proposals aimed at establishing a basic nucleus of stricto sensu Community criminal law74 look exclusively at the protection of the financial interests of the Community and at the loyalty and fidelity of officials.75 According to the objective of these acts, and to the juridical and political choices underlying them, only the Community budget and the proper functioning of the administration would be, beyond doubt, so essential for the existence of the Community itself to deserve a protection by means of criminal provisions established at EC level, which would obviously guarantee the most harmonized possible safeguard within the territory of the Union; and, on the other hand, in order to provide them with the best protection system it offences directed against institutional Community interests (i.e. interests essential to the existence of the Community) which require at least the harmonization, if not the unification, of the sanctions system at EC level; – offences directed against interests having Community relevance, (i.e. national interests whose protection is considered as an EC task by the Treaties), but that are not essential to the existence of the Community; they require deep harmonisation of substantial provisions and sanctions; – offences directed against interests not having specific European relevance, which nonetheless, are of importance and are homogeneously protected throughout the Union (e.g. crimes of homicide, theft, rape and other, defined natural crimes); – offences directed against interests whose importance and need of protection highly depend upon the cultural and ethical background of each nation; the harmonization of the punitive response to this kind of conduct – and, one step back, the decision to punish it throughout Europe as a criminal offence – is hindered by the persistent dissimilarities between the sets of values that characterize each national context (it is enough to consider the different solutions adopted in matter of abortion, euthanasia, and artificial insemination). See A. Bernardi, ‘Strategie per l’armonizzazione dei sistemi penali europei’, in Rivista trimestrale di diritto penale dell’ economia (2003) p. 790. 73  This solution, of course, would be enforceable only if the present difficulties and perplexities concerning the attribution of a criminal competence to the EU would be overcome. 74  Which is to say the criminal provision adopted by the Community, therefore by means of directives and regulations. 75  See Delmas-Marty, J.A.E. Vervaele, eds., op. cit.; the Commission Green Paper on criminal‑law protection of the financial interests of the Community and the establishment of a European Prosecutor, http://europa.eu.int/eur-lex/pri/en/dpi/gpr/doc/2001/com2001_0715en01.doc; the “Proposal for a Directive of the European Parliament and of the Council on the criminal-law protection of the Community‘s financial interests”, COM (2001) 272, in OJ C 240, 28 August 2001; but see also the “Amended proposal for a Directive of the European Parliament and of the Council on the Protection of the Environment through Criminal Law”, COM (2002) 544, in OJ C 020, 28 January 2003, p. 284; however the Council “has considered this proposal but has come to the conclusion that the majority required for its adoption by the Council can not be obtained. The said majority considered that the proposal went beyond the powers attributed to the Community by the Treaty establishing the European Community” (Council Framework Decision 27 January 2003, “On the protection of the environment through criminal law” OJ L 029, 5 May 2003, p. 55, whereas (7)).

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would be worth trying to remove, once and for all, the obstacle that member States are still opposed to the foundation of a European criminal law competence. The authenticity of the single currency does not seem to be so intensely connected to the existence and to the possibilities of action of the Community as the financial resources are; in other words, the euro does not appear to belong to the institutional interests. From a practical perspective, while the Community could not have survived without its budget, it has operated well for decades even without the single currency. This consideration is not meant to underestimate the relevance of the euro, but just to suggest a different placement of the interests related to its authenticity among the different categories of European interests. On the contrary, once excluded from belonging to the group of institutional interests, it is necessary to stress their peculiarity, which descends from their hybrid nature; none of the categories proposed by the different theories concerning the interests having European relevance are capable of comprehending all the various aspects of the set of interests offended by euro counterfeiting. If money falsification harms a set of interests, euro falsification harms a more complex set of interests. To support this hypothesis, we recall that, from an initial point of view, euro forgery determines the traditional negative effects of money forgery; therefore, each consideration regarding the individual and, especially, super-individual interests protected by anti-counterfeiting legislation remains valid. From a second point of view, as we have already said, the illicit at stake jeopardizes interests vested in the Community, which, by means of the ECB, and on the basis of the Treaties, has the exclusive right of money issuance within the euro-zone, and the exclusive control over monetary policy. Nevertheless, even though the member States have been deprived of certain powers that were considered “genetically” connected to national sovereignty (money issuance and monetary policy), it does not follow that they are immune from the negative effects of euro falsification; if only, indirectly, because they could suffer the possible inefficiency of the intervention carried out from Brussels institutions; but also, directly, because the euro remains the “national” currency of each EU participating country. Together with the monetary Union, in other words, the interest to the authenticity of the single currency has been rendered “European” without being “denationalized”. From this point of view, there is a significant difference between the interests underlying the single currency and the interests whose protection is the task of the EC acts that implement the Treaties. The need to protect the latter group of interests is born together with (and as a direct consequence of) the foundation of the single European market; in other words, these interests gain significance in the tight dependence of the European context. Let us consider, as an example,



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competition law: for decades the discipline provided for under arts. 81–82 TEC76 (and the respective EC law secondary sources77) has represented in many member States the only antitrust provisions in force, in view of the fact that only within the enlarged single market has the exigency of guaranteeing free competition been perceived. In the same way, the extensive legislation that enforces the free circulation of persons, goods, services and capitals has “flowered” in the Community humus, out of which the enforcement of such a tight safeguard system of these fundamental freedoms would have had no sense. In contrast, as already stated, the punitive discipline of money counterfeiting is age-old and the need to protect currencies’ authenticity has been realized long before the introduction of the euro. Correspondingly, also the necessity of harmonization of national criminal provisions was felt much earlier than 1 January 2002, as demonstrated by the signing of the Geneva Convention in 1929. For all these reasons, it is too simple to consider the protection of the euro as merely “functional” to the implementation of the Treaties provisions about the monetary union; it is significant that the anti-counterfeiting legislation (also with regards to the euro) has an almost exclusively national origin, while the legislation safeguarding interests that are “functional” to Community goals is mainly European. In conclusion, not even the category of “functional” or “instrumental” interests seems suitable to comprehend the different aspects related to euro authenticity. However, we assume that the protection of the single currency in the European context is of further relevance in comparison to the relevance of its protection within each nations’ orders, in the quality of the national currency of each single participating member State. Firstly, because the aforesaid connection with the monetary policy of the ECB also gives the genuineness of the euro the characteristics of a functional interest for the tasks of the Community. Secondly, because the need for the harmonization of legislations, which has always characterized the fight against counterfeiters, acquires a particular significance with reference to euro falsification. For this purpose, the debate that took place before the signing of the Geneva Convention about the opportunity to implement the principle of indiscrimination between national and foreign coins and notes, was resolved at the preliminary stage. Clearly, in the context of the monetary union such a distinction would make no sense since it is obvious that the falsification of the euro offends directly and identically the interests of any member State, wherever the crime is committed, whoever is the perpetrator. 76  These provisions prohibit, respectively, anti-competitive agreements and abuses of dominant position by undertakings. 77  Council Regulation 17/1962, in OJ P 13, 21 February 1962; EC law concerning mergers have been in force since 1989, with Council Regulation 4064/1989, in OJ L 395, 30 December 1989.

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Lastly, as regards the connection of the single currency with the new emerging interest of the European public order, there could be an important interaction between the punitive discipline of euro counterfeiting and the discipline concerning organized crime adopted under the “third pillar”: only by means of the relevant resources available to a criminal group is it possible to perform a massive counterfeiting operation.78 In conclusion, as a result of the previous analyses we may assert the following: (a) the authenticity of the single currency is an interest that is of Community relevance (bene giuridico comunitario); (b) it does not belong to the category of the institutional-fundamental interests; nevertheless (c) its mere collocation within the category of the interests that are instrumental-functional to the Community activities would be reductive and not satisfactory, since the authenticity of money has always been protected within the national legal system as an interest belonging to national communities and institutions; however (d) it is undeniable that within the context of the monetary union, the protection of the euro gains peculiar significance; moreover (e) there are significant links between the safeguard of the European currency and the safeguard of the European public order, with special reference to the campaign against organized crime; ergo (f) we may assume that the authenticity of the euro is a European interest whose nature is hybrid and complex: it does not fit any of the categories pointed out by the legal literature, but it has characteristics of each of them. After having considered the issues raised by the introduction of the euro in terms of criminal policy and of the interests involved, we will assess the response that has been prepared de iure condito, and we will put forward a few proposals de jure condendo. 2.4. – Even if the European political will to have monetary unity is quite old,79 the Treaty of Maastricht was the fundamental instrument by which the three

78  What is more, in the lack of any explicit provision, the possible legal basis for harmonization of sanctions within Title VI TUE (Provision on police and judicial cooperation in criminal matters) can only be provided for – with an extensive interpretation – by art. 31.1 e) TEU, which imposes the adoption of “measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime…”. 79  See P. Jenninger, C. Meriano, D. Velo, eds., Dal piano Delors all‘unione economica e monetaria (Padova 1991) passim; F. Goudappel, ‘The Influence of European Monetary Integration on the Internal European Relationship’, 14 Tulane European & Civil Law Forum (1999), p. 104; A. Scott, op. cit, passim.



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stages for the introduction of the euro have been laid down.80 Although the legislation regarding the single currency has rapidly grown in the years following 1992, the issue of the protection of the euro from counterfeiting has only recently became a concern. The first explicit provision on the subject is Art. 12 Reg. 974/1998,81 which has imposed the participating member States to “ensure adequate sanctions against counterfeiting and falsification of euro banknotes and coins”. On the basis of this very general provision, a fruitful debate among European and national institutions has taken place,82 which has led to the adoption of two fundamental acts that define the European anti-counterfeiting system: the Framework Decision 29 May 2000 “on increasing protection by criminal penalties and other sanctions against counterfeiting in connection with the introduction of the euro”,83 and Reg. 1338/2001, 28 June 2001, “laying down measures necessary for the protection of the euro against counterfeiting”.84 The latter source establishes and defines a complex network of administrative bodies, both national and European, charged with the collection and the storage of data on counterfeit money; on the contrary, it does not concern substantial law. Consequently, the present work will examine only the aforementioned Framework Decision, whose provisions bring about a further harmonization of the punitive system of money counterfeiting in the member States. The most remarkable features are: (a) the obligation to sign the Geneva Convention;

80  See Beaumont, Walker, eds., op. cit.; G.L. Tosato, L’unione economica e monetaria e l’euro: aspetti giuridici e istituzionali (Torino 1999) passim. 81  Council Regulation 974/98, 3 May 1998, “on the introduction of the euro”, in OJ L 139, 11 May 1998, p. 1. 82  See the communication of the Commission to the Council, to the European Parliament and to the ECB, of 23 July 1998, “Protection of the euro – combating counterfeiting”; the consequent resolution of the European Parliament of 17 November 1998, in OJ L 139, 11 May 1998; the recommendation of the European Central Bank of 7 July 1998 regarding “the adoption of certain measures to enhance the legal protection of euro banknotes and coins”, in OJ C 011, 15 January 1999; the Council Decision of 29 April 1999 extending Europol’s mandate to deal with forgery of money and means of payment, OJ C 149, 28 May 1999; the Council Resolution of 28 May 1999 “on increasing protection by penal sanctions against counterfeiting in connection with the introduction of the Euro”, in OJ C 171, 18 June 1999; the initiative of the German Government for the adoption of a Council Framework Decision to protect the euro by means of criminal sanctions, in OJ C 322, 10 November 1999; the Report on the Legal Protection of Banknotes in the European Union Member States, cit.; the Commission proposal for a Council regulation on protection of the euro against counterfeiting, in OJ C 337, 28 November 2000; the consequent opinion delivered by the ECB on 20 December 2000, in OJ C 19, 20 January 2001; the initiative of the French Government for the adoption of a Council draft Decision for the protection of the euro, in OJ C 075, 7 March 2001. 83  Cit, note 4, supra. 84  In OJ L 181, 4 July 2001, p. 6; see C. Lecou, Y. Xenakis, ‘Protection Juridique de l’Euro et Protection Technique des Pièces contre le Faux Monnayage’, AGON (36/2002) p. 6.

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(b) the obligation to punish by means of criminal sanctions a number of acts of counterfeiting; (c) a minimum limit for the sanction provided for the most serious offences; (d) the principle of universality of the criminal provisions on euro counterfeiting: (e) the duty to provide for the responsibility of legal entities for the crimes of counterfeiting committed in their favour by individuals who have a particular relationship with the company. a) As for the obligation to sign the Convention of 1929, art. 2.2 of the Framework Decision states that the member States “that have not yet done so undertake to accede to the Convention”. The Convention’s provisions are considered “a common minimum standard for all Member States of the European Union regarding protection by penal sanctions against counterfeiting”.85 In other words, the Convention is considered the acquis starting from which a further step has to be made towards a better harmonization of anti-counterfeiting legislation. b) With regards to the obligation to penalize certain conduct, it concerns all the acts described under Art. 3 of the Convention;86 in addition, the member States shall also punish with criminal sanctions the fraudulent export and transport of counterfeit money. With reference to the preliminary acts, the mere possession of instruments and articles intended for counterfeiting is to be punished; in addition, the computer programs (which were obviously not mentioned under the Convention of 1929) and the anti-falsification threads87 are included in the list of objects whose making, receiving, obtaining or possession constitute an offence. Under art. 6.1 of the act in question, the member States shall adopt the necessary measures to ensure that the aforesaid conduct “is punishable by Council Resolution 28 May 1999, cit., note 82, supra. See section 6, supra. Art. 3.1 of the Framework Decision literally states: “Each Member State shall take the necessary measures to ensure that the following conduct is punishable: (a) any fraudulent making or altering of currency, whatever means are employed; (b) the fraudulent uttering of counterfeit currency; (c) the import, export, transport, receiving or obtaining of counterfeit currency with a view to uttering the same and with knowledge that it is counterfeit; (d) the fraudulent making, receiving, obtaining or possession of – instruments, article, computer programmes and any other means peculiarly adapted for the counterfeiting of altering currency, or – holograms or other components of currency which serve to protect against counterfeiting. Art. 3.2 impose to the member States to punish also the participation in and instigation to the conduct referred to in paragraph 1, and the attempt to commit the conduct referred to in points (a) to (c) of paragraph 1(with the exclusion of point (d), which would be an “attempt to commit an attempt of a crime”). 87  With reference to the particular anti-counterfeiting devices the euro banknotes are endowed with, see http://www.euro.ecb.int/it/section/recog.html 85  86 



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effective, proportionate and dissuasive criminal penalties, including penalties involving deprivation of liberty which can give rise to extradition”. c) With reference to the minimum entity of the penalties, art. 6.2 states that the acts of fraudulent making or altering of currency shall be punishable by terms of imprisonment, the maximum being not less than eight years. Therefore, by means of a Framework Decision the European legislator not only lays down an explicit obligation to punish certain behaviour as a criminal offence, but it also prescribes a rigid threshold concerning the quantum of the sanction to be imposed, even if it is with sole regard to the maximum penalty. d) Concerning the principle of universality of criminal provisions protecting the euro, art. 7 of the Decision in question obligates participating member States to “take the appropriate measures to ensure that the prosecution of counterfeiting, at least in respect of the euro, is possible, independent of the nationality of the offender and the place where the offence has been committed”.88 e) Finally, art. 8 of the Framework Decision lines outlines the features of a system of liability for legal entities in relation to offences performed by individuals who have special connections with the company. More precisely, the provision in question prescribes that legal persons: – shall be held liable for the aforesaid offences, if committed for their benefit by any person, who has a leading position within the legal person (which is to say a person who has a power of representation of the legal person, or the power to take decisions, or an authority to exercise control within the legal person); – shall be declared accessories or instigators in such offences or the attempted commission of the offences referred to in art. 3.1 a), b). In its turn, Art. 8.2 establishes the liability of legal persons where the lack of supervision or control by a person referred to in paragraph 1 has rendered possible the commission of an offence of counterfeiting by a person under his authority and for the benefit of that legal person. Art. 9, due to the fact that the principle societas delinquere non potest is still in force in certain national legislations, leaves the member States the choice whether to inflict criminal or administrative sanctions to the legal entities held liable under art. 8.1.89 88  The reference to the conduct of counterfeiting only seems ambiguous: the act of altering should also be mentioned in the provision in matter, even if it is a coherent parallelism with arts 3.1 a) and 6.2, both of which discipline the two behaviours. 89  However the measures must be “effective, proportionate and dissuasive”, and “shall include criminal or non-criminal fines and may include other sanctions such as: (a) exclusion from entitlement to public benefits or aid;

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2.5 – Although several doubts have been raised about the enforceability of the instrument of the Framework Decision,90 the member States have well conformed their legal orders to the act of 29 May 2000.91 Certainly, the foregoing homogeneity of money counterfeiting disciplines in the EU countries, and their similarities with the provision of the Framework Decision, only allowed national legislators to implement very few amendments. However, in spite of this evident tendency towards the harmonization of laws, the system in force still shows certain significant negative aspects which can be divided into two groups: those concerning the contents of the Framework Decision 29 May 2000; and those concerning the use of the instrument itself of the Framework Decision in order to counter euro falsification. In considering the first group, there are three main negative aspects: a) the deficiencies of the harmonization of sanctions; b) the uncertainty in the determination of jurisdiction; c) the ambiguity of certain sides of the legal persons liability regime. a) With regard to the first issue, the attention shall focus on art. 6.2, which, as we have said, forces the member States to punish the most serious offences by terms of imprisonment, “the maximum being not less than eight years”. The criteria adopted by the European legislator looks at the lowest common denominator of protection instead of the maximum standard, since the majority of national orders already provided for the conduct of falsification and alteration of money is a maximum prison term of between ten and twelve years; the lack of harmonization “towards the top of protection”, and the permanence of relevant differences

(b) temporary or permanent disqualification from the practice of commercial activities; (c) placing under judicial supervision; (d) a judicial winding-up order.” As concerns the liability under art. 8.2, art. 9 only prescribes to the member States to provide for “effective, proportionate and dissuasive sanctions or measures”. 90  This legal source, in fact, can be adopted on the basis of the provision of Title VI TUE, therefore within the “third pillar” of the Union: according to the majority of the authors, the failure to implement this act cannot give rise to the infraction procedure. See P.Y. Monjal, ‘Le droit dérivé de l’Union européenne en quête d’identité. A propos de le première decisione-cadre du Conseil de l’Union européenne du 29 mai 2000’, Revue trimestrielle de droit européenne (2/2001) p. 335; L. Salazar, ‘La costruzione di uno spazio di libertà, sicurezza e giustizia dopo il Consiglio europeo di Tampere’, 40 Cassazione penale (2000) pp. 1122–1223; K. Tiedemann, ‘Diritto penale comune europeo tra realtà e utopia’, working paper to the confercence “Il diritto penale nella prospettiva europea — Quali politiche criminali per quale Europa?”, held in Bologna, 28 February/2March 2002; contra, V. Militello, ‘Agli albori di un diritto penale comune in Europa: il contrasto al crimine organizzato’, in V. Militello, L. Paoli, J. Arnold, eds., Il crimine organizzato come fenomeno internazionale (Freiburg 2000) p. 32; see also, in more problematics terms, A. Bernardi, ‘Strategie per l’armonizzazione dei sistemi penali europei’, loc. cit., pp. 826–827. 91  See the Report of the Commission based on Art 11 of the Council’s Framework Decision 29 May 2000 on increasing protection by criminal penalties and other sanctions in connection with the introduction of the euro, COM (2001) 771.



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in the entity of sanctions could bring about forum shopping with consequent concentration of counterfeiting activities in the most lenient systems.92 Nevertheless, it may be objected that the most important flaw is the nondetermination of a common minimum entity of the sanction: beyond the fact that the disapproval of a legal system towards an illicit conduct is essentially expressed by the minimum sentence, an effective harmonization among national sentencing systems is achieved when a threshold is established, a lowest limit that cannot be further decreased. The absence of such a provision leaves numerous differences in the minimum entity of the sanctions under national laws, and it could jeopardise the ability of the Framework Decision to hinder the phenomenon of forum shopping. To give some examples, with reference to the member States whose systems have been examined above, the minimum sentence for the conduct of falsification and alteration of money are extremely varies: one year of prison in Germany (art. 146 StGB), three years in Italy (art. 453 c.p.), eight years in Spain (art. 386 c.p.), no minimum limit in France.93 Furthermore, art. 6.2 refers only to the conduct of falsification and alteration of money; thus, differences between national sentencing system concerning other behaviour are not removed.94 b) Considering the problems in determining jurisdiction, the main feature of the harmonization project implemented by the Framework Decision of 2000, the principle of universality of criminal provisions about euro counterfeiting may cause problems too: in fact, the adoption of this principle in all the participating member States, under art. 7.2 of the Framework Decision, entails an inevitable multiplication of the legal system having jurisdiction, and, consequently, possible conflicts.95 In reality, art. 7.3 states that “where more than one Member State has jurisdiction and has the possibility of a viable prosecution of an offence based on the same facts, the Member States involved shall cooperate in deciding which Member State shall prosecute the offender or offenders with a view to centralizing the prosecution in a single Member State where possible”.

In fact, only the Swedish and the Finnish orders had to be amended in order to respect the threshold in question; see C. Denoual, ‘La protection pénale de l’euro’, AGON (36/2002) pp. 8–9. However, it must be taken into account that the concrete penalty may depend upon the leniency measures that are applicable at the moment of the decision or during the execution of the sentence. 93  Nonetheless, just the reference to the French order is meaningful: the European legislator did not have the possibility to fix a minimum sentence limit, due to the fact that in some member States the minimum limit of the sanction is not provided for by the law. Therefore, the adoption of such a provision would determine an unbearable break between a general principle of criminal law and the counterfeiting discipline. 94  For a complete overview on the sanctions systems see the ECB Report on the Legal Protection of Banknotes in the European Union Member States, cit. 95  It should be noted that each conduct of euro counterfeiting, wherever performed, falls under the scope of each participating member State jurisdiction. 92 

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However, it does not seem adequate to leave the member State to resolve the conflicts of jurisdiction on the basis of their simple willingness to cooperate, especially when the illicit conduct takes place in different territories: the money may be forged within a certain State, transported through another and uttered into a third one. In the light of the frequent difficulties to establish the jurisdiction also when the principle of territoriality applies, the issue of jurisdiction over the crime of euro counterfeiting should have been regulated with more precision. c) As concerns the liability of legal persons, art. 8 determines a very comprehensive responsibility of the companies whenever a crime of counterfeiting is committed for their benefit. As a matter of fact, the legal body can be held responsible both “indirectly”, for the crime committed by a natural person having a leading position; and directly, as an instigator or accessory of the crime. Therefore, two questions are at stake: firstly, what behaviour – necessarily performed by a human – can be considered as an “instigation perpetrated by a legal body”? Secondly, what is the structure of the double regime of responsibility of the legal person? A clear choice should have been made: or an “indirect” responsibility, for the crime committed by an individual; or a direct responsibility, as an instigator or accessory of the main offender. What is the relation between these two forms of liability (which should be, on the contrary, alternative and non cumulative)? In conclusion, the liability under art. 8.2 of the Framework Decision – for a crime committed by a person under the authority of an individual having a leading position in the company– can be defined as “twice indirect”. In fact, the responsibility originates from a conduct that has been possible by the lack of supervision of another natural person: the “supervisor of the supervisor” is made responsible, and in this case the liability regime may be regarded as excessively harsh. 2.6. – Turning now to the second kind of negative aspects of the current system, related to the use of the Framework Decision itself, we need to lay down some premises. Firstly, as we have said, the set of interests underlying the protection of the euro is complex, since it includes both the interests of the Community and of the member States. Therefore, taking into consideration that even before the single currency, the fight against money counterfeiting was treated as a supranational issue, in the light of the new needs for safeguarding specifically related to the euro, it is clear that the response to euro falsification has to be tendentiously uniform. Secondly, we can assume without hesitation that the response has to be in terms of criminal sanctions, at least with reference to the most serious behaviour: each EU country punishes money counterfeiting by means of criminal penalties, in line also with Art. 6 Framework Decision 29 May 2000; furthermore, the adoption of criminal sanctions corresponds to the principle of proportionality



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and subsidiarity, which regulate the choice between administrative and criminal sanctions.96 Thirdly, although the status quo is likely to change, the lack of criminal law competence of the Community impedes the adoption under the “first pillar of acts” containing criminal sanctions: the reason for this being, as is known, the absence in the Treaties of an explicit provision establishing such a competence as well as the democratic deficit of the Union, which is incompatible with the principle of legality in the matter of criminal law, provided for in the Constitutions of the majority of the member States.97 Fourthly, it is necessary to underline that the aforesaid principles of proportionality and subsidiarity form part of the EC law order as well: and not only with the meaning descending from Art. 5 TCE, which limits the an of the Community action “insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States”, and its quantum to “what is necessary to achieve the objectives of this Treaty”; but also in the quality of principles governing the European punitive law. This consideration stands out from Reg. 2988/1995, which lays down the fundamental principles of the Community sanctioning powers, assuming the quality of a general act concerning EC punitive law;98 and from 96  About the principles of proportionality and subsidiarity as corollaries of the extrema ratio of criminal law, see, with reference to the Italian system, “Circolare della Presidenza del Consiglio dei Ministri contenente criteri orientativi per la scelta tra sanzioni penali e sanzioni amministrative”, in Gazzetta ufficiale, n. 22, S.O., 23 January 1984; T. Padovani, ‘La distribuzione di sanzioni penali e sanzioni amministrative secondo l‘esperienza italiana’, 27 Rivista italiana di diritto e procedura penale (1984) p. 952; F. Palazzo, ‘I criteri di riparto tra sanzioni penali e sanzioni amministrative. Dalle leggi di depenalizzazione alla circolare della Presidenza del Consiglio’, 30 L’Indice penale (1986) p. 35; see also, with bibliographic references to German and Spanish literature M. Donini, ‘Sussidiarietà penale e sussidiarietà comunitaria’, in Id., Alla ricerca di un disegno. Scritti sulle riforme penali in Italia (Padova 2003) p. 126, in particular note 23. 97  See A. Bernardi, ‘Europeizzazione del diritto penale commerciale?’, 9 Rivista trimestrale di diritto penale dell’economia (1996) pp. 43–44; Id. ‘I principi e criteri direttivi in tema di sanzioni nelle recenti leggi comunitarie’, loc. cit., p. 65, and indicated bibliography; G. Grasso, ‘La formazione di un diritto penale dell’Unione europea’, in Grasso, ed., Prospettive di un diritto penale europeo (Milano 1998) p. 1; C. Pedrazzi, ‘L’influenza della produzione giuridica della CEE sul diritto penale italiano’, in G. Alpa, C. Pedrazzi, A. Pizzorusso et alteros, L’influenza del diritto europeo sul diritto italiano (Milano 1982) p. 613; R. Riz, Diritto penale e diritto comunitario (Padova 1984) p. 11; L. Salazar, ‘Diritto penale e diritto comunitario: la strana coppia’, 32 Cassazione penale (1992) p. 1663. Contra, with reference to the new text of Art. 280 TCE, L. Picotti, ‘Potestà penale dell’Unione europea nella lotta contro le frodi comunitarie e possibile base giuridica del Corpus Juris. In margine al nuovo art. 280 del Trattato CE’, in Grasso, ed., La lotta contro la frode agli interessi finanziari della Comunità europea tra prevenzione e repressione (Milano 2000) p. 357; K. Tiedemann, Pour un espace juridique commun après Amsterdam, AGON (17/1997) p. 12; and the varied opinions of E. Bacigalupo, M. Delmas-Marty, D. Spinellis, J.A.E. Vervaele, expressed in ‘Legal basis for the implementation’, in M. Delmas-Marty, J.A.E. Vervaele (eds.), op. cit., p. 367. 98  Council Regulation 2988/1995, 18 December 1995, “on the protection of the European Communities financial interests” in OJ L 312, 23 December 1995. Art. 2.3 of the act in question states “Community law shall determine the nature and scope of the administrative measures and penalties necessary for the correct application of the rules in question, having regard to the nature and seriousness of the irregularity, the advantage granted or received and the degree of

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the case law of the European Court of Justice99 and of the European Court of Human Rights.100 On the basis of these considerations, the Framework Decision of harmonization could be deemed the most adequate instrument to pursue a proper system for the protection of the euro. Since the sanctions for euro counterfeiting must have a criminal nature (second premise), they cannot be implemented by Community acts, adopted within the first pillar of the Union (third premise); nevertheless, the exigency of harmonization (first premise) make a mere national discipline inadequate to the scope, and calls for a Community action (fourth premise, with reference to the principle of subsidiarity.101 In conclusion, with the final objective being a harmonized system of criminal sanctions, enforced at European level, but respectful of the principle of non-competence of the Community in criminal matters, the Framework Decision provided for by the title VI TUE, would be the only instrument available. In fact art. 34 TUE declares that Framework Decisions are adopted “for the purpose of approximation of the laws and regulations of the Member States”, in the areas referred to in Title VI, among which art. 29.2 cites the “criminal matter”. However, this conclusion is contradicted by two fundamental considerations: the first concerns the legal basis of the Framework Decision 29 May 2000, therefore its legitimacy; the second concerns the opportunity to adopt a different responsibility”. In its turn, Art. 2.1 limits the adoption of checks, measures and penalties “in so far as they are necessary to ensure the proper application of Community law”. For an exhaustive comment of this Regulation, and for further bibliography, see A.M. Maugeri, ‘Il regolamento n. 2988/95: un modello di disciplina del potere punitivo comunitario’, in Grasso, ed., La lotta contro la frode…, op. cit., 149, in particular p. 194; see also C. Haguenau, L’application effective du droit communautaire en droit interne (Bruxelles 1995) p. 557. 99  See Einfhur – und Vorratsstelle Getreide/Köster, C-25/70, dec. 17 December 1970, ECR, 1970, 1161; Südzucker Mannheim/Ochensfurt AG, C-161/96, dec. 19 January 1998, ECR, 1998, I-281. 100  For numerous reference to ECHR case law concerning the principle of subsidiarity and proportionality as a parameter of legitimacy of any punitive act, see A.M. Maugeri, loc. cit., p. 204 and note 149. The relevance of ECHR case law as a “source of obligations” towards national and European legislators result from two elements: art. 6 TUE declares “the Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms … as general principles of Community law” (see Kremzow, C-299/95, ECR 1977, p. I-2629); the practical significance of these fundamental rights is established by the interpretation of the European Convention of Human Rights given by the Court of Strasbourg. 101  The principle of subsidiarity can have an ambivalent meaning: it can entail the exclusion of Community intervention, wherever national States are able to achieve the proposed objectives; but it can also justify and require a Community intervention whenever a concerted action is necessary. About this ambivalence, see P. Caretti, ‘Il principio di sussidiarietà e i suoi riflessi sul piano dell’ordinamento comunitario e dell’ordinamento nazionale’, Quaderni costituzionali (1/1993) p. 7; M. Cartabia, ‘Il pluralismo istituzionale come forma della democrazia sopranazionale’, Politica diritto (2/1994) p. 203; R. Hoffman, ‘Il principio si sussidiarietà. L’attuale significato nel diritto costituzionale tedesco ed il possibile ruolo nell’ordinamento dell’Unione europea’, Rivista italiana di diritto pubblico comunitario (1993) p. 23; in the criminal law literature, A. Bernardi, Verso una codificazione penale europea? Ostacoli e prospettive, Annali dell’Università di Ferrara – Scienze Giuridiche, Saggi (1996) vol. III, p. 29 and indicated bibliography.



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instrument to fight euro falsification, namely a directive for the harmonization of sanctions. As concerns the legal basis, the one indicated in the preamble of the Framework Decision – Arts. 31 e) and 34.2 b) TUE – does not appear to be consistent. Art. 31 e) states that “common action on judicial cooperation in criminal matters shall include…progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking”. Now, only by means of a very free and easy interpretation could the campaign against euro falsification be overlapped to the fight against organized crime. On the one hand, as we have said, only a group of counterfeiters can realize massive falsification operations. On the other hand, the phenomenon of organized criminality does not include tout court money counterfeiting as a subset; these two phenomenon cross each other but do not coincide. In fact, the Framework Decision at stake does not mention organised crime at all. With regards to the opportunity to adopt a directive for the harmonization of sanctions, containing obligations to penalize, we would like to set aside the question of its legitimacy and consider the possible benefits of such an act. In case the provision of the Framework Decision were to provided for in an act adopted under the “first pillar”, on the basis of Art. 249 TCE, there would not be no doubt as to their enforceability, since, in the case of non-compliance, the infraction procedure under Art. 226 TCE could be commenced; the perplexities concerning the legal basis would also be avoided102since a directive could be adopted under art. 94 TCE.103 Moreover, the adoption of a directive would also satisfy a general principle governing the legislative policy of the Community, namely the principle of proportionality, which, in the same way of the principle of subsidiarity,104 can have an ambivalent meaning. Briefly, on the basis of an interpretation of this principle, from one point of view “any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty” (Art. 5.3), from another point of view, whenever more than one instrument is available for the accomplishment of a given objective, EC legislator should adopt the more satisfactory, which is to say the instrument which can most effectively achieve the objective itself. Thus, since a directive of harmonization would be 102  Of course, only if the same kind of perplexities did not exist with regard to a directive; see section 13, infra. 103  “The Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament and the Economic and Social Committee, issue directives for the approximation of such laws, regulations or administrative provisions of the Member States as directly affect the establishment or functioning of the common market”. 104  See note 101, supra.

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advantageous from the aforementioned standpoints, it should be privileged to the Framework Decision. 2.7. – What we have said so far about the benefits of a directive of harmonization, takes for granted the question of the legitimacy of an EC act containing duties of penalization. To achieve this we need to analyse the third premise introduced in the previous section, regarding the “EC lack of competence in criminal matters”. As is well-known, the punitive law enacted by the European Community, within the first pillar, consists of exclusively administrative sanctions, adopted in certain regulations concerning mainly competition law, agriculture and fishery law: this legislation is rather limited, given that, under the principle of subsidiarity, the national States are primarily delegated to grant EC law provisions with adequate sanctions.105 In fact, on account of the aforesaid democratic deficit of the Union, and of the lack in the Treaties of any provision explicitly providing the Community with competence in criminal law, member States have always countered the adoption of regulations imposing criminal sanctions. What is more, national governments have so far also prevented the enactment of directives containing obligations to criminalize.106 In reality, the Community adopted directives where the implementation of criminal penalties was suggested and also advised;107 other directives have imposed member States to punish certain violations of Community law in the same way as they punish infringements of national provisions having the same nature and purpose of the former.108 Nevertheless, it is important to repeat that no directives have ever compelled national legislators to implement criminal sanctions to punish violations of Community law. In spite of all these remarks, the majority of criminal law literature argues that the main dogmatic obstacle to the adoption of Community acts containing 105  See A. Bernardi, ‘I principi e criteri direttivi…’, op. cit, pp. 64–65 and indicated bibliography; G. Grasso, ‘La formazione di un diritto penale …’, loc. cit., p. 5; C. Haugenau, op. cit., passim; H.H. Jescheck, ‘Possibilità e limiti di un diritto penale per la protezione dell’Unione europea’, in L. Picotti, ed., Possibilità e limiti di un diritto penale europeo (Milano 1999) p. 13; A. Pisaneschi, Le sanzioni amministrative comunitarie (Padova 1998), passim; S. Riondato, Competenza penale della Comunità europea. Problemi di attribuzione attraverso la giurisprudenza, Padova, 1996, p. 132. 106  However, see the “Proposal for a Directive of the European Parliament and of the Council on the criminal-law protection of the Community’s financial interests”, cit., note 75, supra. 107  See Council Directive 89/592, 13 November 1989, “coordinating regulations on insider dealing”, in OJ L 334, 18 November 1989, p. 30; Council Directive 91/308, 10 June 1991, “on prevention of the use of the financial system for the purpose of money laundering”, in OJ L 166, 28 June 1991, p. 77; in the literature, see A. Bernardi, ‘Europeizzazione del diritto penale commerciale?’, loc. cit., p. 15; S. Manacorda, ‘L’efficacia espansiva del diritto comunitario sul diritto penale’, Foro italiano (1995) IV p. 63. 108  In this case, whenever national provisions provided for criminal sanctions, an obligation to criminalize would be “indirectly” introduced; see, for example, Council Directive 91/250, 14 May 1991, “on the legal protection of computer programs”, in OJ L 122, del 17 May 1991, p. 42. In the literature, see A. Bernardi, ‘I principi e criteri direttivi…’, op. cit., p. 73.



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obligations to criminalize – the democratic deficit of the Union, which is incompatible with the principle of legality – may be overtaken with the mere use of directives: these legal sources are implemented into national legislation by means of internal legislative acts, which functions, as a by-pass for the principle of legality. Therefore, together with the absence of an explicit Treaty provision on this matter, the real impediment to the acknowledgment of a Community competence to adopt such acts seems to be the political will of certain member States to uphold national monopoly over criminal law. On the other hand, this attitude appears short-sighted, if we think about the more “dangerous” and “intrusive” forms of influence of EC law on national criminal law. Besides the traditional mechanisms by which EC law interferes with criminal law (which have already been pointed out by the doctrine109 and which are not “dangerous” since they operate in bonam partem), there exists another channel through which the said influence could operate in a much more consistent way: the European Court of Justice judgement concerning the “adequateness” of the national sanctions system safeguarding Community law. In response to this concern, in the well-known decision “Greek corn”,110 the Court, on the grounds of the duty of sincere cooperation laid down in Art. 10 TEC, ordered the Greek government to punish infringements of EC provision “under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance (principle of equivalent protection) and which, in any event, make the penalty effective, proportionate and dissuasive (principle of adequate protection)”. In an order immediately after, the Court explained that the principle of sincere cooperation “requires the Member States to take all the measures necessary to guarantee the application and effectiveness of Community law, if necessary by instituting criminal proceedings…”.111 However, this notable ECJ judicial trend has produced the most remarkable results in recent years. In a judgement given in 1999,112 the Court declared that “the measures which the Member States are required to take under Article 6(3) See E. Baker, ‘Taking European Criminal Law Seriously’, Criminal Law Review (1998) p. 361; A. Bernardi, ‘Principi di diritto e diritto penale europeo’, Annali dell’Università di Ferrara – Scienze Giuridiche (1988) vol. II, p. 163; Id., ‘Europeizzazione del diritto penale commerciale?’, loc. cit., p. 43 and indicated bibliography; G. Dannecker, ‘Strafrecht der europäische Gemeinschaft’, in Eser, Huber, eds., Strafrechtsentwicklung in Europa (Freiburg im Breisgau 1995) vol 4.3, p. 58; G. Grasso, Comunità europee…, op. cit., p. 92 and p. 194; H.G. Sevenster, ‘Criminal Law and EC Law’, 29 Common Market Law Review (1992) p. 29; K. Tiedemann, ‘L’europeizzazione del diritto penale’, 41 Rivista italiana di diritto e procedura penale (1998) pp. 20–21. 110  Judgement 21 September 1989, case 68/88, Commission of the European Communities v Hellenic Republic, ECR, 1989, 2965. See A. Bernardi, ‘I principi e criteri direttivi…’, loc. cit., p. 71, ivi note 38 for further case law references. 111  Order 13 July 1990, case C-2/88, Zwartvweld, ECR, 1990, 3365. 112  Judgement 28 January 1999, case C-77/97, Unilever, ECR, 1999, I-0431. 109 

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of Directive 76/768113 in order to prevent advertisements which attribute to cosmetic products characteristics which those products lack, must provide that such advertisements constitute a breach of the law and, in particular, a criminal offence punishable by penalties having a deterrent effect”. For the first time, the ECJ has unequivocally stated the existence under a Community act of a duty for the member States to introduce criminal sanctions; furthermore, the content of this judgement entails that the necessity to adopt criminal sanctions can be determined by the Court itself, which can deliver such a decision on the ground of Community law standards that prevail on national ones.114 Subsequently, the ECJ has once more declared, the Greek law on Community fraud inadequate, in spite of the fact that, after the aforesaid judgement of 1989, the Greek legislator enacted a reform; nevertheless, the Court has focused on the merits of that law, which have been found to be neither adequate nor effective.115 Should this judicial trend – on the basis of which the ECJ could declare the national punitive systems inadequate, and, consequently, fine member States not complying to the principle of sincere cooperation under Art. 10 TEC – the aforementioned oppositions to the attribution to the Community of a competence in criminal matters will become an issue of secondary importance. In fact, a Directive of harmonization imposing the adoption of criminal sanctions would be much less “intrusive” than a judgement delivered by the ECJ, finding a member State in failure to provide Community law with adequate sanctions and requiring the necessary amendments; in case such a decision was not respected, the punitive procedure under Art. 228 TEC could be initiated. An even deeper “intrusion” could be exerted by a decision where the ECJ declared a national reform in bonam partem incompatible with Community law, because it could leave interests having Community relevance116 without adequate protection. 113  Council Directive 76/768, “on the approximation of the laws of the Member States relating to cosmetic products”, in OJ L 262, 27 September 1976. 114  See S. Riondato, ‘Cosmetici e pubblicità ingannevole: rigido obbligo comunitario di penalizzazione’, Diritto penale e processo (1999) p. 449. 115  Judgement 13 July 2000, case C-46/97, Hellenic Republic v Commission of the European Communities, ECR, 2000, I-5719. 116  Under certain national orders, such a decision could entail the incompatibility of the reform with national Constitutions, and the return into force of the precedent more severe discipline This could be the case of the business law reform enacted in Italy with Decreto Legislativo 11 April 2002, n. 61 (“disciplina degli illeciti penali e amministrativi riguardanti le società commerciali, a norma dell‘articolo 11 della legge 3 ottobre 2001, n. 366”, in Gazz. uff. n. 88, 15 April 2002), that, according to some, petitions lodged before the ECJ by Italian courts, may be violating Directive 68/151 (“First Council Directive on co-ordination of safeguards which…are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community”, in OJ L 65, 14 March 1968); see L. Foffani, ‘Verso un nuovo diritto penale societario: i punti critici della legge delega’, Cassazione penale (2001) p. 3247; A. Di Martino, ‘Disciplina degli illeciti societari in bilico tra legalità nazionale e legittimità comunitaria’, Guida al diritto (45/2002) p. 113; C. Sotis, Obblighi



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On the contrary, the introduction in the system of Directives with obligations to penalize, would bring about substantial harmonization of national laws, under the control of national legislators and without any disturbing consequences: therefore, national Parliaments would be involved in the enforcement of the Directives by means of the internal implementation act. Consequently, in case the “political” obstacles to the adoption of this type of Directives were overtaken, the possible legal base could be found in Art. 94 TCE.117 Moreover, under this provision, the Council should act “unanimously” and “after consulting the Parliament”: on the one hand, the rule of unanimity makes sure that just a single veto could hinder the introduction of any obligation of criminalization; on the other hand, the obligation to consult the Parliament makes this law-making process more democratic than the one under Art. 34 TEU (for the adoption of Framework Decisions), which does not provide for such an obligation. However, it must be noted that part of the considerations expressed above could be overruled in case the “Draft Treaty establishing a Constitution for Europe”118 led to the adoption of a definitive text of a European Constitution.119 Under Art. III-172 par. 1 of the Draft Treaty, in effect, “European framework laws may establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with cross-border dimensions resulting from the nature or impact of such offences or from a special need to combat them on a common basis”; the subsequent paragraph literally mentions “counterfeiting of means of payment” among the areas of crimes in matter. Should this provision be adopted, some important consequences would occur: – the current doubts concerning the legal base of the Framework Decision 29 May 2000 on the protection of the euro against counterfeiting120 would not regard the adoption of a “framework law” with the same object, since the crime of counterfeiting is expressively cited in the aforesaid list; – the rule of unanimity (currently stated under art. 34 TEU) would no longer apply to the law-making process in the sector of judicial cooperation in criminal matter: Art. 22 par. 3 of the Draft Treaty declares that “except where comunitari di tutela e opzione penale: una dialettica perpetua?, 45 Rivista italiana di diritto e procedura penale (2002) p. 171. 117  “The Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament and the Economic and Social Committee, issue directives for the approximation of such laws, regulations or administrative provisions of the Member States as directly affecting the establishment or functioning of the common market”. 118  The text of the Draft Treaty, adopted on 18 July 2003, can be found on the website http:// european-convention.eu.int/. 119  Art. IV-2 of the Draft Treaty states as follows: “The Treaty establishing the European Community, the Treaty on the European Union and the acts and treaties which have supplemented or amended them and are listed in the Protocol annexed to the Treaty establishing the Constitution shall be repealed as from the date of entry into force of the Treaty establishing the Constitution.” 120  See, supra, sub par. 12.

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the Constitution provides otherwise, decisions of the Council of Ministers shall be taken by qualified majority”, and such an exception is not provided for under Section 4 (“Judicial cooperation in criminal matters”), Chapter IV (“Area of freedom, security and justice”) of the Draft Treaty itself; – accordingly, a EU competence to adopt criminal acts121 is likely to be established in the future with regard to money counterfeiting; furthermore, a competence which can be exerted under the rule of qualified majority, and not of unanimity. Nevertheless, taking into consideration the available instruments at the present time, we may confirm the preference for a Directive of harmonization of criminal law on counterfeiting, which would have a low “shocking impact” on national orders, since in every member State counterfeiting is punished with criminal sanctions and the illicit acts are tendentiously homogeneous. Therefore, in expectation of the developments of the ECJ case-law concerning the “adequateness” of national sanctioning systems, and of the possible adoption of a “European Constitution”, the protection of the single currency could be the key to opening the gate which still preserves national monopoly over criminal law. 2.8. Conclude, we would like to stress that the decision to focus the attention almost exclusively on substantial law aspects concerning the protection of the euro against counterfeiting, does not mean to underestimate the importance of cooperation between member States for the enforcement of anti-counterfeiting legislation; there is no need to explain why administrative, police and judicial cooperation is vital for proper safeguarding. In fact, only by means of the routine work carried out by the different authorities involved in the anti-falsification system, can it be possible, starting from the single counterfeit that passes hand to hand across the Union, to track down who produced it, who transported it, who put it into circulation; and, subsequently, to apply sanctions to those responsible. Finally, as we have emphasized, the most relevant act is Regulation 1338/2001,122 which establishes and disciplines national and centralized bodies in charge of the collection, the storing and the processing of data on counterfeit banknotes and coins; in order to achieve this the development of investigative powers endowed to supranational police authorities123 is necessary. 121  Even though under Art. 32 par. 3 of the Draft Treaty, “the European framework law shall be a legislative act binding, as to the result to be achieved, on the Member States to which it is addressed, but leaving the national authorities entirely free to choose the form and means of achieving that result”, as like as the Framework decision. 122  Cit. note 84, supra. 123  See the Council Decision of 29 April 1999, “extending Europol’s mandate to deal with forgery of money and means of payment”, in OJ C 149, 28 May 1999; the agreement between the Europol and the European Central Bank, whose purpose is (Art. 1) “to provide for effective cooperation between the Parties in relation to measures to combat the threats arising from counterfeiting of



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Currently, an issue of particular concern regards the repression of counterfeiting operations carried out in non-EU countries, some of which are not even part of the Geneva Convention: under those circumstances, the offenders may act within broader range and undisturbed, unlikely to undergo the European criminal provisions, in spite of their theoretical “universal applicability”.124 Nevertheless, despite the indisputable importance of the different kinds of administrative cooperation, we can assume the core of the matter lies in the process of harmonization of substantial law. As demonstrated above, this process has reached a satisfactory stage with regards to the illicit conduct, but not with regards to the sanctions system; as far as the instrument for harmonization is concerned, the Framework Decision does not seem to be the most appropriate. As pointed out by the doctrine,125 the homogeneity of national substantial law is the essential premise for efficient cooperation on the side of enforcement: only if the “intensity of the disapproval” expressed by the different legal systems towards certain offences is the same, will there be the reciprocal trust that is indispensable for cooperation. And only in that case, eventually, a perfectly workable joint strategy could be adopted in order to protect the single European currency from a new “Hungarian scandal”.

the euro, and to enhance and coordinate any assistance in this area provided by both Parties to the national and European authorities and to international organisations”; and the Joint initiative of the Secretary General of Interpol and the Director of Europol, signed in Brussels on 5 November 2001, “on combating the counterfeiting of currency, in particular the Euro”, in http://www.interpol. int/Public/ICPO/legalmaterials/cooperation /agree…/Europol2001. 124  Art. 9 Regulation 1338/2001 states: “1. The Commission and the Member States shall cooperate with non-member countries and international organisations in close association with the European Central Bank. Such cooperation shall include the assistance necessary to prevent and combat counterfeiting of the euro, in accordance with the provisions relating to the prevention of unlawful activities contained in cooperation, association and pre-accession agreements. 2. The Council shall ensure that cooperation, association and pre-accession agreements between the European Community and non-member countries include provisions enabling Article 3(2) to be applied [concerning the collection by the ECB of the information about the counterfeits in euro withheld in third countries]”. 125  See ‘Motivazione. Verso una repressione più giusta, più semplice e più efficace’, in Verso uno spazio giudiziario europeo, Milano, 1997, p. 42; M. Delmas-Marty, ‘Necessity of the Corpus Juris’, in M. Delmas-Marty, J.A.E. Vervaele, eds., op. cit., p. 31; recently, A, Bernardi, ‘Strategie per l’armonizzazione…’, loc. cit., p. 789 and indicated bibliography.

A Definition that Could not Work: the EU Framework Decision on the Fight against Organised Crime Francesco Calderoni Ph.D. Candidate, Università Cattolica di Milano, Italy

This article argues that the definition of organised crime by the European Union Framework Decision on the Fight against Organised Crime (henceforth FD) is uncertain and vague, and that this makes the FD a poor instrument with little added value for the approximation of criminal legislation against organised crime. This criticism of the FD is based on both legal and criminological arguments, since the FD appears to be flawed from both perspectives. In order to support the article’s main thesis, the first section provides brief background information on organised crime, harmonisation and approximation of criminal law in the EU. The second section then analyses the definition of “criminal organisation” as provided by the FD and the model offences criminalizing participation in a criminal organisation. Subsequently, the third section summarises the FD’s problems relative to its added value in the approximation of criminal legislation against organised crime and suggests some possible improvements. The last section concludes.

1. Organised Crime, Harmonisation and Approximation of National Criminal Legislations The concept of organised crime is debated both in criminal law and criminology. This is because the phenomenon is in itself complex and overlaps with economic crime, terrorism and even the legal economy, but also because state action to combat organised crime has frequently been uncertain and mostly symbolic, using the concept as a “picklock for criminal law and justice reforms” in order to increase police powers.1 After 11 September 2001 the main focus of L. Paoli and C. Fijnaut, “General Introduction”, in Organised Crime in Europe: Concepts, Patterns and Control Policies in the European Union and Beyond, ed. C. Fijnaut and L. Paoli (Dordrecht 2004), p. 5; P.C. van Duyne, “The Creation of a Threat Image: Media, Policy Making and Organised Crime”, in Threats and Phantoms of Organised Crime, Corruption and Terrorism, ed. P. van Duyne et al. (Nijmegen 2004); M. De Boer, “Law-Enforcement Cooperation and 1 

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the international crime and security agenda shifted from organised crime to terrorism, but the approach remained the same. The links between organised crime and terrorism suddenly became apparent and measures against organised crime were turned against terrorism.2 These difficulties long mirrored the lack of international consensus on a legal definition of organised crime. In the last decade this shortcoming was remedied by the 1998 Joint Action making it a criminal offence to participate in a criminal organisation in the Member States of the European Union (henceforth the JA3) and the United Nations Convention against Transnational Organized Crime of 2000 (henceforth Palermo Convention4). Whilst the problem of the legislative loophole has been solved, however, the quest for a definition which balances effective repression with the safeguarding of civil rights and liberties still continues, as the analysis of the FD will show. In the context of the EU, the concern with organised crime touches on another sensitive issue: the harmonisation of criminal law. As in the case of “organised crime”, “harmonisation” is another complex and blurred concept. In the scientific literature it is variously treated as an objective, a method or a process. This imprecision has given rise to different approaches and opinions on the harmonisation of criminal law, with animated debates between harmonisation enthusiasts and sceptics. Indeed, Article 31 of the Treaty on European Union enables approximation of criminal law through the adoption of “minimum rules concerning the constituent elements of criminal acts and penalties in the field of organised crime, terrorism and illicit drug trafficking”. The Treaty on European Union and the EU instruments adopted under the III pillar use the concept of approximation. Whilst apparently similar, harmonisation and approximation are two different processes. From a more considered perspective, “harmonisation Transational Organized Crime in Europe”, in Transnational Organized Crime and International Security: Business as Usual?, ed. Mats Berdal and Mónica Serrano (Boulder 2002), p. 115; J.O. Finckenauer, “Problems of Definition: What Is Organized Crime?” Trends in Organized Crime 8, no. 3 (Spring 2005), p. 73; E. Symeonidou-Kastanidou, “Towards a New Definition of Organised Crime in the European Union”, European Journal of Crime, Criminal Law and Criminal Justice 15, no. 1 (2007), pp. 89–92. 2  A.V. Orlova and J.W. Moore, “‘Umbrellas or Building Blocks?’: Defining International Terrorism and Transnational Organized Crime in International Law”, Houston Journal of International Law 27 (2005), pp. 298–303. 3  Joint actions were introduced by Article K. 3 of the Treaty on European Union (Maastricht version). The norm did not explain the function and effects of these legal instruments. In the absence of clear provisions, about twenty joint actions were approved in very disparate sectors, ranging from drugs and organised crime to police and judicial cooperation. The relative ease of adoption (compared to conventions) and the lack of obligations on Member States made joint actions useful tools for political purposes without any actual obligation upon governments. 4  The Palermo Convention was adopted by the General Assembly on 15 November 2000 and was open for signature from 12 to 15 December 2000 in Palermo and then in New York until 12 December 2002. It entered into force on 29 September 2003. Altogether, 147 States and regional economic integration organizations signed the Convention. As of May 2008 it has 143 Parties.



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is the process of (re)ordering the relationship between diverse elements in accordance with a prefixed standard so as to avoid or eliminate friction”,5 while approximation “corresponds with the idea of making two different systems more similar by eliminating some of the differences between them”.6 The Council has nevertheless adopted a large number of measures under the III pillar of the Treaty on European Union, whose topic and degree of harmonisation clearly exceeds the limits set by the Treaty for approximation.7 This marked trend towards harmonisation of criminal law in the EU has been driven to a great extent by the supposed threat posed by organised crime internally to a Union without internal borders. The alleged threat of organised crime and the supposed need for extensive harmonisation of criminal legislation of EU Member States have created a kind of self-fulfilling device for increased EU influence on national criminal legislation.8 On the one hand, this process is the natural and obvious consequence of the progressive establishment of a European legal area, which started for a mere economic purpose and has enlarged its scope over the years. Indeed, some form of harmonisation of key issues of criminal norms is necessary to smooth the implementation of the principle of mutual recognition.9 On the other hand, the current institutional framework of the III pillar suffers from a well-known democratic deficit. The accountability and transparency of its decision-making process are inadequate and do not comply with the generally accepted principles of criminal legislation. Rejection of the Treaty establishing a Constitution for Europe blocked several much needed reforms to the III pillar, such as the introduction of the European Parliament as co-legislator with the Council and a more incisive role for the European Court of Justice.10 The recently signed Treaty of Lisbon again seeks to introduce these very important innovations

5  F.M. Tadic, “How Harmonious Can Harmonisation Be? A Theoretical Approach Towards Harmonisation of (Criminal) Law”, in Harmonisation and Harmonising Measures in Criminal Law, ed. A.H. Klip and H.G. van der Wilt (Amsterdam 2002), p. 16. 6  F.M. Tadic, loc. cit., p. 9. 7  G. Vermeulen, “Where Do We Currently Stand with Harmonisation in Europe?” in Harmonisation and Harmonising Measures in Criminal Law, ed. A.H. Klip and H.G. van der Wilt (Amsterdam 2002), p. 70; Anne Weyembergh, “Approximation of Criminal Laws, the Constitutional Treaty and The Hague Programme”, Common Market Law Review 42 (2005), p. 1569. 8  J. Vogel, “Why is the Harmonisation of Penal Law Necessary? A Comment” in Harmonisation and Harmonising Measures in Criminal Law, ed. A.H. Klip and H.G. van der Wilt (Amsterdam 2002), p. 54. 9  P. Asp, “Mutual Recognition and the Development of Criminal Law Cooperation Within the EU”, in Harmonization of Criminal Law in Europe, ed. Erling J. Husabø and Asbjørn Strandbakken, Supranational Criminal Law: Capita Selecta, vol. 3 (Antwerpen 2005), p. 32; S. Peers, “Mutual Recognition and Criminal Law in the European Union: Has the Council Got It Wrong?” Common Market Law Review 41 (2004), p. 34; G. Vermeulen, loc. cit., pp. 71–73. 10  A. Weyembergh, loc. cit., p. 1593.

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into the III pillar.11 If the Treaty enters into force, the three-pillar structure will be abolished and the European Parliament will be recognized as co-legislator, filling the democratic gap in the sector. Further improvements are the enhanced participation by national Parliaments as provided for by several protocols to be annexed to the Treaty, accession by the EU to European Convention for the Protection of Human Rights and Fundamental Freedoms, and improved control by the Court of Justice of the European Union.12 Therefore, from the standpoint of the approximation of criminal legislation, EU action against organised crime – of which the FD is a crucial element – exhibits a variety of perspectives ranging from the merely scientific approach to participation by the present writer in the current debate on security and protection of fundamental rights and civil liberties.

2. The Framework Decision on the Fight against Organised Crime The FD follows the JA and the Palermo Convention and is thus the third international instrument of law providing a definition of organised crime.13 The main impetus for a new EU instrument was imparted by the events of 11 September 2001, when terrorism became the absolute priority on the international agenda and many anti-organised crime measures were adopted to combat it. The “War on Terror” in part took the place of organised crime as a “picklock” for the introduction of harsh legislation and the restriction of civil liberties.14 Although it is clear that many anti-organised crime activities can prove very effective in the repression of terrorism as well, the overlap between the two phenomena may lead to significant misunderstandings and confusion in combating them. A well-known example is the Financial Action Task Force’s (FATF) attempt to include terrorist financing in its anti-money laundering Recommendations. This 11  The Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed in Lisbon on 13 December 2007, OJ, C 306 of 17/12/2007. 12  See the Protocol on the role of national Parliaments in the European Union, the Protocol on the application of the principles of subsidiarity and proportionality, Article 6 paragraph 2 of the Treaty on European Union as amended by the Treaty of Lisbon and Articles 220–245 of the Treaty on the Functioning of the European Union, formerly Treaty Establishing the European Community as amended by the Treaty of Lisbon. 13  The FD was proposed by the Commission in its Communication of 9 of January 2005 (European Commission, Proposal for a Council Framework Decision on the Fight Against Organised Crime, COM(2005)6, (2005)). The Council approved the final text on 28 of April 2006 (Council of the European Union, Doc. 12279/06 of 28 September 2006) Its entry into force is conditioned by publication in the Official Journal. This will occur when the parliamentary reservations posed by Denmark, France, Ireland, Netherlands, Sweden and the United Kingdom are lifted. 14  A.V. Orlova and J.W. Moore, loc. cit., pp. 298–303; H.-H. Kühne, “Terrorism Rediscovered: The Issue of Politically Inspired Criminality”, in Migration, Culture Conflict, Crime and Terrorism, ed. J.D. Freilich and R.T. Guerette (Aldershot 2006), p. 16.



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approach was ineffectual because it applied the same instrument to different targets. Money laundering is the aftermath of illegal activities and its function is to disguise the origin of the funds. The main challenge for law enforcement is thus to trace funds back to their illegal source. Terrorist financing is generally performed through legal channels, and investigative agencies consequently focus on anticipating when these activities may be diverted to support terrorism.15 Whilst organised crime and terrorism share some common features, they also have major differences. A proper criminal policy to deal with them must be aware of both aspects in order to take advantage of possible synergies but also to avoid misleading confusions. An example of this approach is the Communication of 29 March 2004 by the European Commission, stating that “a link should be established between measures to combat organised crime and terrorism”.16 The concept of criminal organisation introduced by the JA also extends to encompass terrorist groups. Consequently: The Union legislation on criminal organisations must therefore be toughened and made consistent with Union legislation on the fight against terrorism: a Framework Decision to supersede Joint Action 1998/733/JHA will be a major step forward in the fight against the most serious forms of crime. This will also be the most effective way of tackling the overall terrorist phenomenon.17

For the Commission, the main objective of the updating of the JA was to “actually harmonise the definition of offences and penalties”.18 The reformatting of the JA was necessary in order to update it to take account of three main factors. The first was the Amsterdam Treaty, which had brought some innovations to the structure of the III pillar and in particular had introduced framework decisions expressly designed for the approximation of criminal legislation, binding upon Members States as to the results, but leaving them free to choose the instruments with which to implement them. The second factor was the signature and entry into force of the Palermo Convention, the first international treaty containing a legal definition of organised crime. Although the EU had participated in the drafting of the text and had tried to make it compatible with the JA, a newer instrument would have ensured closer compliance with the Palermo Convention. The third factor was the Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism, which was deemed to be “a much fuller” instrument.19 The new instrument of the framework decision had enabled EU Member States to A.V. Orlova and J.W. Moore, loc. cit., p. 301. European Commission, Communication from the Commission to the Council and the European Parliament on Measures to Be Taken to Combat Terrorism and Other Forms of Serious Crime, in Particular to Improve Exchanges of Information, COM(2004)221 (2004), p. 4. 17  European Commission, COM(2004)221, cit., p. 7. 18  European Commission, COM(2004)221, cit., p. 6. 19  European Commission, COM(2004)221, cit., p. 6. 15  16 

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adopt a common definition of terrorism only a few months after the attacks of 9/11, proving to be effective and rapid. This experience suggested that the same results could be achieved in the field of organised crime, where the JA was not binding upon Member States. 2.1. The New Definition of Criminal Organisation 2.1.1. The “Negative” Definition of Structured Association Art. 1 of the FD sets out the definition of a criminal organisation.20 The text largely adheres to both the definitions provided by the JA and the Palermo Convention.21 It defines a criminal organisation as “a structured association, established over a period of time, of more than two persons acting in concert …”, Echoing the formulation of the JA, the first descriptor of a criminal organization is the presence of an association with at least three members. The structured nature of the association is inherently linked with the notion itself of organised crime.22 The term may admit to a rather narrow interpretation (a simple association is Art. 1 of the FD: “Definitions” “For the purposes of this Framework Decision: 1) ‘criminal organisation’ means a structured association, established over a period of time, of more than two persons acting in concert with a view to committing offences which are punishable by deprivation of liberty or a detention order of a maximum of at least four years or a more serious penalty, to obtain, directly or indirectly, a financial or other material benefit; 2) ‘structured association’ means an association that is not randomly formed for the immediate commission of an offence, nor does it need to have formally defined roles for its members, continuity of its membership, or a developed structure.” 21  Article 1, paragraph 1 of the JA: “Within the meaning of this joint action, a criminal organisation shall mean a structured association, established over a period of time, of more than two persons, acting in concert with a view to committing offences which are punishable by deprivation of liberty or a detention order of a maximum of at least four years or a more serious penalty, whether such offences are an end in themselves or a means of obtaining material benefits and, where appropriate, of improperly influencing the operation of public authorities.”   Article 2 of the Palermo Convention: “Use of terms. For the purposes of this Convention: (a) ‘Organized criminal group’ shall mean a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit; (b) ‘Serious crime’ shall mean conduct constituting an offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty; (c) ‘Structured group’ shall mean a group that is not randomly formed for the immediate commission of an offence and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure; […]” 22  V. Mitsilegas, “Defining Organised Crime in the European Union: The Limits of European Criminal Law in an Area of ‘Freedom, Security and Justice’”, European Law Review 26 (2001), p. 569. 20 





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something more than a mere group, and a structured association should therefore imply some kind of organisation). Conversely, the definition provided by the FD is markedly different. The concept of “structured association” is clarified at Article 1, point 2) of the FD, which follows to the letter the Palermo Convention definition of “structured group”. It is a negative definition which states what a structured association is not, rather than furnishing some positive definitional features.23 The text only provides two extremes of a structured association’s possible range of variation. The lower extreme excludes random groups formed to commit a single crime (the text mentions “an offence”: but what about the case of multiple crimes?), the higher extreme excludes complex structure, formal hierarchy and constant composition as mandatory requirements. The range described comprises a broad variety of different criminal organisations, encompassing groups that may differ significantly in their social threat and seriousness of criminal intent. The requirements of being “established over a period of time” and concert among the organisation’s members restrict the application of the notion. Even if these criteria are widely acknowledged among scholars and law enforcement agencies, they are very vaguely formulated, with no further specifications.24 The duration criterion in particular only excludes minor or irrelevant cases.25 From a legal point of view, the vague definition of the notion of structured association may raise problems relating to the principle of legality and its corollaries of clarity and precision of criminal law.26 The definition, as it appears, is so vague as to deprive the notion of structured association of large part of its selective potential.27 In order to make it compatible with the principle of legality, Members States will have to complete and specify the definition. The results may differ substantially among Member States. This uncertain understanding of the notion is likely to jeopardise the effective approximation of national legislation. Indeed, the implementation of the EU definition at the national level may end up with very different national definitions and approaches, depriving the original intent of all meaning. From a criminological point of view, the definition covers an extremely broad span of phenomena and does not address the distinctive features of organised E. Symeonidou-Kastanidou, loc. cit., p. 97. V. Mitsilegas, loc. cit., p. 577. 25  This requirement makes the legal definition of the FD even more ambiguous than the definition used by the EU and the Council of Europe for their annual reports on organised crime. In the latest definition a mandatory requirement is “a prolonged or indefinite period of time” (Council of the European Union, Doc. 6204/2/97 Enfopol 35 Rev 2 of 21 April 1997) Even in such a non binding document more effort was made to provide a better specification of the idea of the continuous nature of organised crime. 26  V. Mitsilegas, loc. cit., p. 570. 27  V. Mitsilegas, loc. cit., p. 577. 23  24 

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crime.28 These characterise organised crime and should be highlighted in order to distinguish it from mere “crimes that are organised”. Indeed, “there is a danger, generally, in the promiscuous use of the label organized crime with reference to perpetrators of “crimes that are organized”, and also with criminal networks that lack what we regard as the essential defining elements of being criminal organizations”.29 The most accurate studies in the field have identified these elements in: – Continuity: the group must have a stable structure suited to the continuous and indefinite commission of crimes, independently of its membership;30 – Violence: the group exploits its force to use or to threaten to use violence or intimidation. This may be addressed to other criminal groups, minor criminals, legal/illegal competitors and victims;31 – Enterprise: the group’s main goals are profit and power. These are usually pursued through the production and/or exchange of illegal goods and/or services in illegal markets;32 – Immunity: the group can corrupt or exert influence on other subjects (politicians, media, judicial authorities, administrators, enterprises) in order to shield its activities from any form of sanction.33 None of these elements is clearly spelled out in the FD’s definition of criminal organisation. The EU’s notion of organised crime is thus far removed from the results of scientific research in the field. 2.1.2. The Rigid Selection of the Predicate Offences The illegal nature of the organisation derives from its objective of committing multiple crimes (“… with a view to committing offences which are punishable by deprivation of liberty or a detention order of a maximum of at least four years or a more serious penalty”). The requirement of a plurality of criminal acts has been inherited from the JA, whilst the Palermo Convention includes groups committing “one or more serious crimes”. This possibility of a criminal J. Bay, “Definitions of Organized Crime in the European Union: A Criminological Perspective”, in Organised Crime & Crime Prevention – What Works? Rapport Fra NSfK:S 40. Forskerseminar. Espoo, Finland 1998 (København: Scandinavian Research Council for Criminology, 1998), p. 31. 29  J.O. Finckenauer, loc. cit., pp. 77–78. 30  J.O. Finckenauer, loc. cit., p. 66; Joi Bay, loc. cit., p. 25; F.E. Hagan, “‘Organized Crime’ and ‘organized crime’: Indeterminate Problems of Definition”, Trends in Organized Crime 9, no. 4 (Summer 2006), p. 135. 31  J.O. Finckenauer, loc. cit., p. 66, J. Bay, loc. cit., p. 26, K. von Lampe et al., “Organised Crime Is … Findings from a Cross National Review of Literature”, in The Organisation of Crime for Profit: Conduct, Law and Measurement, ed. Petrus C. van Duyne et al. (Nijmegen: Wolf Legal Publishers, 2006), p. 36. 32  F.E. Hagan, loc. cit., p. 134; James O. Finckenauer, loc. cit., pp. 66–67. 33  J.O. Finckenauer, loc. cit., p. 67, J. Bay, loc. cit., p. 27; F.E. Hagan, loc. cit., p. 135. 28 



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organisation whose plan involves only one offence, albeit serious, raises some concern when the organisational requirements are minimal as for the Palermo Convention.34 The criminal plan of the organisation must include offences punishable with at least four years of maximum imprisonment, a quantitative threshold for what the EU considers to be a serious crime.35 This legislative technique has been inherited from both the JA and the Palermo Convention. Its aim is to restrict the applicability of the concept of criminal organisation to serious crimes.36 Paradoxically, it ends up by being a rigid approach to the selection of the predicate offences. This rigidity raises several problems. The levels of penalties vary significantly among EU Member States, and there is no EU framework for criminal sanctions.37 Indeed, as Militello states, “proportionality between criminal acts and respective penalties is not an absolute concept but only a relative one measuring the scale of reaction of a particular legal order”.38 This quantitative threshold once again jeopardises the objective of approximating national legislation against organised crimes. Firstly, different offences (if committed by at least three people) may fall within the notion of criminal organisation, according to the sanctioning regime and tradition of each Member State.39 This may result in very different applications of the concept of criminal organisation and thus create problems in the coordination of law enforcement activities among Member States (e.g.: two identical behaviours in the territory of two different countries may be treated very differently).40 Secondly, since many activities of criminal organisations usually fall within the competence of several jurisdictions, the differential application of the discipline on criminal organisations may imply very different criminal treatments depending on which state prosecutes the offences (e.g.: one behaviour may receive different treatments according to which state establishes its jurisdiction to prosecute it). The final result may be far from improving the level of approximation among Member States.

A.V. Orlova and J.W. Moore, loc. cit., p. 282. V. Mitsilegas, loc. cit., p. 570. 36  European Commission, COM(2005)6, cit., p. 4. 37  A.V. Orlova and J.W. Moore, loc. cit., p. 282; S. Peers, loc. cit.; G. Vermeulen, loc. cit., pp. 75–76; V. Militello, “Participation in a Criminal Organisation as a Model of European Criminal Offence”, in Towards a European Criminal Law Against Organised Crime: Proposals and Summaries of the Joint European Project to Counter Organised Crime, ed. V. Militello and B. Huber (Freiburg 2001), p. 26. 38  V. Militello, loc. cit., p. 25. 39  V. Militello, loc. cit., p. 25. 40  S. Manacorda, “La Risposte Pénale Contre la Criminalité Organisée dans le Droit de l’Union Européenne”, in L’infraction d’Organisation Criminelle en Europe: (Allemagne – Espagne – France – Italie – Union Européenne), ed. S. Manacorda (Paris 2002), p. 282. 34 

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Besides the legal issues caused by the use of this technique, it also reflects a controversial criminal policy approach to the notion of organised crime. Instead of focusing on the distinctive features of the phenomenon, in order to provide a more penetrating definition (see above § 2.1.1), it dilutes the salient aspects of organised crime and transforms the notion into a generic container serving ideological and mutual cooperation purposes.41 This intention is evident in the above-cited Commission Communication, where the FD is presented as a measure complementary to the Framework Decision on combating terrorism.42 This choice of criminal policy may have important drawbacks. The label “criminal organisation” has serious consequences in terms of police control and derogations to standard procedural guarantees. The level of state reaction requires that the crimes involved be proportionally serious. The FD definition however does not focus on the distinctive features of organised crime that may justify the substantial increase in the investigation, prosecution and sanctioning regime. The combination of the critical points described above prevents setting a sensible threshold for the application of the notion of criminal organisation, opening the way for possible excesses of repression.43 The FD definition does not depart substantially from the definitions provided in the previous international instruments. It remedies some minor problems with the JA by importing solutions from the Palermo Convention.44 This shows that the European legislator has disregarded the criticisms made of the excessive vagueness and meaninglessness of the JA.45 The Council has failed to address the core characteristics of organised crime. The definition of “structured association” is thus a nebulous oxymoron challenging legal certainty.46 The quantitative selection of the predicate offences does not dispel this vagueness, because of the sanctioning disparities among national systems. This broad approach to the concept finally dilutes it in order to extend its application and apparently reduce discrepancies among EU MS.47

J. Bay, loc. cit., p. 32. European Commission, COM(2004)221, cit., p. 7. 43  E. Symeonidou-Kastanidou, loc. cit., pp. 92 and 96. 44  In particular, the simple clause introduced by the Palermo Convention (“to obtain, directly or indirectly, a financial or other material benefit”) substitutes for the somewhat problematic description of the ultimate objectives of the organisation in the JA (“[…] whether such offences are an end in themselves or a means of obtaining material benefits and, where appropriate, of improperly influencing the operation of public authorities.”). Article 1 paragraph 2 of the JA providing a superfluous and unclear cross-reference to the offences contained in the Europol Convention has not be been maintained. 45  J. Bay, loc.cit., p. 32; Vincenzo Militello, loc. cit.; Stefano Manacorda, loc. cit.; A. Weyembergh, loc. cit.; V. Mitsilegas, loc. cit. 46  E. Symeonidou-Kastanidou, loc. cit., pp. 97–98; Valsamis Mitsilegas, loc.cit., p. 576–577. 47  J. Bay, loc. cit., p. 32. 41  42 



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2.2. Offences Relating to Participation in a Criminal Organisation 2.2.1. The Double Model Offence The FD requires Member States to criminalize participation in a criminal organisation. Article 2 envisages a double model offence:48 national legislators are allowed to choose either or both a civil law model offence and a common law model offence.49 This approach was introduced by the JA50 and maintained by the Palermo Convention.51 Article 2 of the FD: “Offences relating to participation in a criminal organisation Each Member State shall take the necessary measures to ensure that one or both of the following types of conduct related to a criminal organisation are regarded as offences: (a) conduct by any person who, with intent and with knowledge of either the aim and general activity of the criminal organisation or its intention to commit the offences in question, actively takes part in the organisation’s criminal activities, including the provision of information or material means, the recruitment of new members and all forms of financing of its activities, knowing that such participation will contribute to the achievement of the organisation’s criminal activities; (b) conduct by any person consisting in an agreement with one or more persons that an activity should be pursued, which if carried out, would amount to the commission of offences referred to in Article 1, even if that person does not take part in the actual execution of the activity.” 49  The archetypes of the two model offences can be traced to the French association de malfaiteurs and the English conspiracy offences respectively. 50  Article 2 of the JA: “1. To assist the fight against criminal organisations, each Member State shall undertake, in accordance with the procedure laid down in Article 6, to ensure that one or both of the types of conduct described below are punishable by effective, proportionate and dissuasive criminal penalties: (a) conduct by any person who, with intent and with knowledge of either the aim and general criminal activity of the organisation or the intention of the organisation to commit the offences in question, actively takes part in: – the organisation’s criminal activities falling within Article 1, even where that person does not take part in the actual execution of the offences concerned and, subject to the general principles of the criminal law of the Member State concerned, even where the offences concerned are not actually committed, – the organisation’s other activities in the further knowledge that his participation will contribute to the achievement of the organisation’s criminal activities falling within Article 1; (b) conduct by any person consisting in an agreement with one or more persons that an activity should be pursued which, if carried out, would amount to the commission of offences falling within Article 1, even if that person does not take part in the actual execution of the activity.” 51  Article 5 of the Palermo Convention: “Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally: (a) Either or both of the following as criminal offences distinct from those involving the attempt or completion of the criminal activity: 48 



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The civil law model offence comes from the European continental legal tradition. While both the JA and the Palermo Convention sought to distinguish between participation in the organisation’s criminal activities and in its other activities, the solution adopted in FD is slightly different. The criminal conduct now encompasses active participation in the criminal activities of the organisation. A list of formally non-criminal support activities, comprising the provision of information or material means, the recruitment of new members and all forms of financing, is included in the notion of active participation. These behaviours describe the typical activities of the leaders of groups and other “external” contributors, and they are criminalized because of their essential role of supporting the activities of a criminal organisation. Both criminal and support activities require that the participant must know that the organisation is either a criminal one or intends to commit offences, and that their participation will contribute to the organisation’s criminal activities. In regard to the civil law model offence, the FD does not substantially diverge from the discipline set by the JA and the Palermo Convention. It resolves some critical issues but the main approach is still the same: a very broad definition of criminal organisation (see above 2.1.1) and a quantitative selection of the predicate offences (see above §2.1.2) are combined with a very poor description of the material element of the model offence which nearly coincides with the mere participation in a crime.52 Indeed, an extremely broad array of crimes (committed by at least three people with a minimum level of co-ordination) may fall within the definition of Article 2 of the FD.53 Virtually any group, provided that it is engaged in an activity sanctioned with at least four years of imprisonment, could be prosecuted for the offence of “participation in a criminal organisation”. This may also include activities that “were not aimed to

(i) Agreeing with one or more other persons to commit a serious crime for a purpose relating directly or indirectly to the obtaining of a financial or other material benefit and, where required by domestic law, involving an act undertaken by one of the participants in furtherance of the agreement or involving an organized criminal group; (ii) Conduct by a person who, with knowledge of either the aim and general criminal activity of an organized criminal group or its intention to commit the crimes in question, takes an active part in: a. Criminal activities of the organized criminal group; b. Other activities of the organized criminal group in the knowledge that his or her participation will contribute to the achievement of the above described criminal aim; (b) Organizing, directing, aiding, abetting, facilitating or counselling the commission of serious crime involving an organized criminal group. […]” 52  S. Manacorda, loc. cit., p. 283; Weyembergh, loc. cit., pp. 1588–1589. 53  L. Paoli and C. Fijnaut, “Introduction to Part I: The History of the Concept”, in Organised Crime in Europe: Concepts, Patterns and Control Policies in the European Union and Beyond, ed. C. Fijnaut and L. Paoli (Dordrecht 2004), p. 41; E. Symeonidou-Kastanidou, loc. cit., p. 93.



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be included in the first place” in the definition of organised crime.54 From this perspective, the civil law model offence is likely to conflict with the principle of clarity and precision of criminal legislation. The FD does not establish a clear division between participation in a criminal organisation and mere participation in a crime which is conventionally recognized by all national criminal legislation according to the legal culture of each Member State.55 The common law model offence recalls the crime of conspiracy in the AngloSaxon tradition. This provision of the FD follows to the letter the corresponding provision of the JA. Members States may punish mere agreement between two people in order to commit the crimes falling under Article 1 of the FD. This possibility has been included in the JA in order to obtain the consensus of the common law Member States, where criminal organisations are pursued through the offence of conspiracy.56 The criminal agreement must be “related to a criminal organisation”. This element is a slight improvement on the JA, which did not require any explicit relation with a criminal organisation. 2.2.2. A Motionless Approximation The above-described double model offence approach is another problematic issue concerning the FD. First introduced by the JA and also maintained by the Palermo Convention, it represents a solution by political compromise between the continental tradition of associative offences and the Anglo-Saxon conspiracy tradition. During the JA negotiations, the common law model offence was introduced because of the reaction by the United Kingdom, as also happened in the case of the FD.57 While the Commission’s proposal had suggested a single model offence based on the continental tradition, this was not retained by the Council, which introduced a conspiracy clause. This happened because IE and UK thought that the alternative option of criminalising conspiracy from the 1998 Joint Action should be maintained. UK referred to the evidentiary difficulties UK prosecutorial authorities would be faced with when trying to prove membership of a criminal organisation. In view of these legitimate law enforcement concerns and at the suggestion of BE, the Presidency proposes to reinsert the alternative referring to conspiracy.58

It is clear that the present solution has been introduced into the text of the FD in order to obtain the consensus of the common law Member States, where criminal organisations are pursued through the device of conspiracy.59 This 54  55  56  57  58  59 

V. Mitsilegas, loc. cit., p. 570. S. Manacorda, loc. cit., p. 290. S. Manacorda, loc. cit., p. 287. V. Mitsilegas, loc. cit., p. 570. Council of the European Union, Doc. 9864/05 of 8 June 2005 (2005), p. 6, footnote 3. S. Manacorda, loc. cit., p. 287; Valsamis Mitsilegas, loc. cit., p. 571.

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happened because Article 34 §2 of the Treaty on European Union still requires unanimity for the adoption of framework decisions. This compromise is once again problematic in light of the objective itself of framework decisions, i.e. the approximation of the criminal legislations of Member States.60 This outcome appears to be undermined by the final text approved by the Council. Indeed, the common law and civil law approaches are equalized as far as their function is concerned, without any substantial approximation of national disciplines.61 Most EU Member States will not have to change or modify their current legislation concerning the criminalization of participation in a criminal organisation. The FD fails to establish a common European criminal law approach to the repression of organised crime. This choice seems to jeopardize the added value of the FD in the perspective of improving law enforcement and judicial cooperation in criminal matters through the approximation of criminal law.62 This view is confirmed by the blunt statement by the Commission, joined by France and Italy, concerning the final text of the FD:63 The Commission affirms that “the Framework Decision does not achieve the minimum degree of approximation of acts of directing or participating in a criminal organisation on the basis of a single concept of such an organisation”. Moreover, the FD “enables Member States not to introduce the concept of criminal organisation but to continue to apply existing national criminal law by having recourse to general rules on participation in and preparation of specific offences”. Finally, it states that the FD “does not achieve the objective of the approximation of legislation on the fight against transnational organised crime as provided for in the Hague Programme”. This declaration highlights the extent to which the issue is still debated and its complexity. Even if the Commission adopts some of the most typical organised crime rhetoric in its proposal, its statement on the final text makes the point.

3. Problems with Framework Decisions and Possible Improvements The description of the definition of criminal organisation and the offences relating to the participation in a criminal organisation provided by the FD highlight some major problems.

60  61  62  63 

S. Manacorda, loc. cit., pp. 287–288. S. Manacorda, loc. cit., p. 287. S. Manacorda, loc. cit., p. 270, G. Vermeule, loc. cit., pp. 71–74; A. Weyembergh, loc. cit., p. 1582. Council of the European Union, Doc. 9067/06 of 10 May 2006 (2006), p. 12.



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3.1. The FD is Vague The definition of criminal organisation is based on the notion of structured association. However, the hermeneutic potential of this concept is erased because of its negative definition (see above § 2.1.1). The concept of criminal organisation is thus extended to encompass a very broad range of organizational patterns which are unlikely to warrant the same attention and repression. This broad definition does not satisfy the fundamental requisites of clarity and precision in criminal legislation. The civil law model offence of participating in a criminal organisation does not significantly differ from mere participation in a crime (see above § 2.2.1). Again, this contrasts with key principles of criminal legislation. A possible solution would be to have the definition of criminal organisation or the material element of the model offence comprise one or more distinctive features identified by scientific research on organised crime (see above under 2.1.1). As shown above, the FD’s definition does not clearly require any element of continuity, violence/intimidation, enterprise or immunity. Their inclusion would restrict the application of the FD and improve its clarity and precision from both a criminological and legal perspective. This solution might increase the workload of law enforcement agencies and prosecutions, which will have to prove the presence of these features in court. However, this seems a price worth paying in order to restrict application of the offence to serious criminal groups, in accordance with the basic principles of criminal law. 3.2. The FD is Rigid The quantitative threshold for the selection of predicate offences does not take account of the very different sanctioning regimes and traditions of EU MS. This may give rise to diverse conceptions of criminal organisations among national systems. One MS may consider a particular group to be a criminal organisation, whilst another may not because of the different penalties inflicted on the predicate offences. This would hamper clear identification of a core set of serious criminal activities typically carried out by organised criminals. A possible solution would be the inclusion of a list of predicate offences. Even if this approach has been discarded by the Commission,64 it would clearly specify the typical activities of criminal organisations. These might correspond to those serious crimes subject to EU intervention, such as drug trafficking, corruption, smuggling of human beings and money laundering, and thus represent a “core of common disvalue” agreed by all Member States.65 In this regard, the Joint 64  65 

European Commission, COM(2005)6, cit., p. 4. V. Militello, loc. cit., p. 29.

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European Project to Counter Organised Crime has suggested “murder, kidnapping, drug trafficking, money laundering, human trafficking and corruption” as possible core offences.66 The objection that crime evolves much more rapidly than legislation, so that the list may rapidly become obsolete, can be rebutted with the argument that the list should not be rigid, but open to other serious criminal activities, possibly decided by a further decision by the Council and the Parliament.

4. The FD does not Approximate MS Legislation The criminalization requirements of the FD maintain the double model offence approach. While this solution allows flexibility and the adoption of a model offence familiar to the different legal cultures of the Member States, it is right to wonder whether approximation is achievable while maintaining these two very different approaches. The present result is a political compromise caused by the need for unanimity within the Council rather than a choice of legislative technique. A possible solution would be the adoption of a single model offence. This should be a flexible model which synthesises different traditions and remedies the current situation of two parallel definitions.67 This would certainly oblige some Members States to modify their national legislations significantly. However, it should be borne in mind that this seems to be the future trend of judicial cooperation on criminal matters, given that the European Constitution and the Treaty of Lisbon submit the adoption of instruments approximating criminal law to qualified majority voting, thus abandoning the unanimity principle. From the perspective of increasing convergence among criminal justice systems in the EU, it is unlikely that national particularities will be maintained for serious crimes whose repression requires a certain level of harmonisation in order to support international cooperation.

5. Conclusions The FD is the third international instrument defining organised crime and requiring the criminalization of participation in a criminal organisation. It draws on the previous instruments, making only some minor changes and improvements to them. This conservatism makes the FD vulnerable to the criticism brought against both the JA and the Palermo Convention, with the additional flaw of not learning from previous mistakes. Analysis of the measure has highlighted 66  67 

V. Militello, loc. cit., p. 27. S. Manacorda, loc. cit., p. 287.



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several critical deficiencies and showed that its possible value added for the approximation of Member States’ legislations appears to be low. It does not push towards a common model offence of participation in a criminal organisation, allowing each country to keep its current discipline without any substantial change. Most of its content would probably have been implemented through ratification of the Palermo Convention.68 Driven by the need for compromise and the will not to depart from the Palermo Convention, the Council has probably missed an important opportunity to provide the EU with a sensible and meaningful common definition of organised crime.

68  As of May 2008, the Palermo Convention has been ratified by all Member States except the Czech Republic, Greece, Ireland and Luxembourg (see ).

3. The Criminalisation of White Collar Crime

Forging the European Cartel Offence: The Supranational Regulation of Business Conspiracy Christopher Harding Department of Law and Criminology, Aberystwyth University, Aberystwyth, United Kingdom

The discussion in this paper examines the emergence of what may now be fairly described as the ‘European cartel offence’: that species of infringement of Article 81 of the EC Treaty, increasingly referred to as ‘hard core cartel’ activity, connoting real delinquency which justifies the imposition of severe penal sanctions. This development is significant not just as a matter of more explicit regulation within the field of competition law, but also as part of a wider context of vilification and criminalisation of certain well-established forms of cartel behaviour. As national systems (such as that in Britain) have introduced new criminal offences in relation to cartels, it is illuminating to consider and compare the evolution of the supranational ‘European cartel offence’. Having its basis in the infringement of Article 81 of the EC Treaty, the offence is necessarily one of collusion, being an agreement or concertation for anti-competitive purposes. As such, the more specific nature of the ‘offence’ has been established incrementally, very much as the product of argument presented in appeals relating to issues of evidence and penalties. It has been necessary to consider whether the offence resides in the planning or the implementation of anti-competitive activity, or both, and whether it comprises specific acts or a continuing pattern of behaviour. The mature version of the ‘offence’, worked out in the jurisprudence of the European Commission and the Community Courts, is based on the organising concept of ‘the cartel as a whole’. This process of forging a ‘European cartel offence’ provides an instructive lesson in the legal construction of criminality and the resort to a form of organisational responsibility. It also points to the emergence of a bifurcated system of both individual and corporate liability in this context.

1. Background: The Criminalisation of Cartels One of the most significant and legally interesting aspects of this area of competition law comprising the regulation of cartels has been the movement in recent years in a number of legal systems towards a tougher mode of enforcement in

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relation to prohibited cartel conduct, and in particular the resort to criminal law and penal sanctions.1 Historically, the approach adopted under American law demonstrated an early willingness to use both criminal sanctions and civil litigation leading to the award of ‘penal’ (treble) damages as a means of reinforcing the prohibition of the Sherman Act. European legal systems on the other hand were traditionally much more committed to a ‘softer’ administrative regulation of competition matters2 and have only very recently turned to the possibility of criminalising the more serious kinds of anti-competitive activity embodied in the concept of the ‘hard core cartel’.3 Admittedly, the European Community system of competition regulation, founded upon Articles 81 and 82 (ex Articles 85 and 86) of the EC Treaty, demonstrated a more vigorous enforcement, both in terms of investigatory powers and the use of penal fines. But the latter did not amount to criminalisation in formal terms, since, despite its repressive features, it was embedded in a process officially described as administrative4 and not criminal; it therefore occupied a position somewhere between that of American law and that of most national European systems. However, in the last few years the hardening of legal response at the European national level, coupled with a more determined approach to enforcement in the US and EC contexts, has suggested a global convergence in cartel regulation at the level of the highest common denominator. This has resulted in a widely agreed official vilification of business cartel arrangements as ‘egregious’ violations, calling for determined investigation and enforcement strategies, preferably including criminal sanctions which will serve as both a deterrent and provide a convincing ‘carrot and stick’ in leniency programmes.5 Across jurisdictions, the cartel offence, once historically confined to North America, is now becoming commonplace. But, as a matter of criminal jurisprudence, what is more precisely is comprised in this emergent species of offending conduct? This is an intriguing question especially in relation to the European or EC cartel infringement or ‘offence’, which is not a criminal offence as such and has been constructed incrementally through case law rather than on the basis of explicit legislative definition. The discussion here will focus primarily on the emergence of this ‘European cartel 1  For a wider discussion of such developments, see C. Harding and J. Joshua, Regulating Cartels in Europe (Oxford 2003), esp Chs 5–10. 2  For a further discussion of the historical divergence in approaches to regulation, see Harding and Joshua, note 1 above, Ch 2; and C. Harding, ‘Business Cartels as a Criminal Activity’, 9 Maastricht Journal of European and Comparative Law (2003) p. 393. On the evolution of competition regulation in Europe more generally, see D.J. Gerber, Law and Competition in Twentieth Century Europe: Protecting Prometheus (Oxford 1998). 3  A notable example is the new criminal offence under English criminal law: see the Enterprise Act 2003, s 188 et seq., and the discussion of this new offence by Harding and Joshua, ‘Breaking Up the Hard Core: the Prospects for the proposed Cartel Offence’, Criminal Law Review (2002) pp. 933. 4  See, e.g Article 15 of Regulation 17 (Article 22 of the replacement measure, Regulation 1/2003). 5  See C. Harding and J. Joshua, note 1 above, Chs 8–10.



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offence’, and also consider thereby some of the significant legal issues associated with the concept of a cartel offence. But in the first place, two definitional questions present themselves. First, what is understood by the term ‘cartel’? Then secondly, in what circumstances do the activities of a cartel, or participation in a cartel, amount to a punishable offence?

2. The Concept of a ‘Cartel’ The term ‘cartel’6 is now widely employed to describe, in a trading and business context, an organisation of competing suppliers in a particular market, formed for the purpose of limiting competition between its members, to their economic advantage and to the disadvantage of other market participants and consumers. Such cartels agree typically on measures such as price fixing, market sharing, limitation of production, bid rigging and co-ordination of other conditions of supply. Despite its now wide usage, the word still lacks precise definition in many systems of competition and antitrust law, and is not in itself an established term of legal art. Thus, to cite a few examples, US antitrust legislation (the Sherman Act) refers to contracts, combinations or conspiracies in restraint of trade or commerce; Article 81 of the EC Treaty and the UK Competition Act refer to agreements, decisions and concerted practices which prevent, restrict or distort competition; and the earlier British legislation (the Restrictive Practices Act of 1976) spoke of agreements which contained listed restrictions. The recent Enterprise Act in the UK introduces the term ‘cartel offence’ but somewhat oddly (but then again perhaps not so oddly in the context of British legislative drafting) uses the term only as a title to a number of sections, referring elsewhere to the offence as the ‘offence under Section 188’, and that Section of the statute does not use the word cartel at all. More generally, there is a linguistic looseness in the current use of the term cartel, often for instance equating ‘cartel’ with an ‘agreement’ or ‘practice’. This is exemplified by the guidance notes issued by the UK Director General of Fair Trading on the 1998 Competition Act, when it is stated that: Generally speaking, a cartel is an agreement between undertakings to fix prices or other trading conditions or to share out markets. A distinctive form of cartel is known as collusive tendering or bid rigging … The aim of a cartel is to increase prices by restricting or removing competition between the participants. Cartels are operated secretly and can be hard to detect.7

6  For discussion of the etymology of the term, see C. Harding and J. Joshua, note 1 above, at pp 11–16. 7  www.oft.gov.uk/html/comp-act.

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Such an account in effect uses the word ‘cartel’ to describe (a) an agreement, (b) a practice which is the subject-matter of agreement and (c) a form of organisation to give effect to such an agreement. This slippery use of language may be noted as an early indication of some of the conceptual, technical and practical difficulties which have beset the emerging criminal and penal regulation of the subject, as discussed further below. In more everyday language, ‘cartel’ is often used to refer to an organisation rather than an agreement or practice. In this sense it is a convenient shorthand term used to describe a grouping of corporate actors, bound together conspiratorially in an anti-competitive enterprise and involved in both the planning and implementation of strategies such as market sharing and price fixing. Although in one way this implies a more amorphous existence, spreading over space and time and comprising different levels of activity, it also serves to consolidate a separate group identity, providing the ‘conspiracy’ with some sense of personality. To view the cartel in this way serves to indicate some of the intriguing but difficult features of its legal development. It is at one and the same time a phenomenon which is difficult to pin down more precisely in legal terms, yet provides the structure for a distinctive form of collective action, which in turn provides the basis for the liability of its individual members. It is notable, for instance, that while legal investigations are carried out into the activities of a cartel and a legal determination (for instance, a decision of the European Commission) which may officially refer to the cartel as its subject, liability and sanctions are applied individually and severally to its members. The cartel is a crucial structure and object of legal action, but does not have its own legal personality. It is not surprising then that everybody seems to recognise a cartel when they see one, but may find it difficult to supply a specific description or exact definition. One of the most useful working definitions of a business cartel for legal purposes is given by the OECD in its 1998 Recommendation on Effective Action Against Hard Core Cartels.8 This text effectively defines ‘hard core’ cartel activity as: An anti-competitive agreement, anti-competitive concerted practice, or anticompetitive arrangement between competitors to fix prices, make rigged bids (collusive tenders), establish output restrictions or quotas, or share or divide markets by allocating customers, suppliers, territories or lines of commerce.

This definition has a number of virtues: clarity and simplicity, while covering what are agreed to be the principal categories of anti-competitive strategy, but also linking the agreement of anti-competitive purpose with its material realisation. Reference to ‘arrangement’ is suggestive of organisation and edges the definition towards an idea of structured activity which appears to be contained 8 

OECD, Paris, 27–28 April 1998 (C(98)35/Final).



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in the concept of the ‘cartel as a whole’, which will be discussed more fully below. The OECD text is a useful template for further legislative action and appears to have been a motivating factor in the recent wider drive towards criminalisation of cartels. But the important point of law and language to note at this stage is the extent to which the term ‘cartel’ (and even ‘hard core cartel’) has entered common parlance, but without a widely agreed sense of its specific definition.

3. The Concept of an ‘Offending Cartel’ Definitional discussion of ‘cartel’ merges subtly with that of the ‘cartel as an offence’. A comparative survey would show that most definitions of ‘offending cartel conduct’ (whether or not cast as criminal offences) commonly comprise two crucial components which must be linked together: an element of collusion, and a projected anti-competitive activity. Neither in itself is sufficient to constitute an offence. This may be seen from the analysis in Table 1 below of four examples, taken from US, UK and EC law, and the OECD Under these provisions, therefore, just to engage in the anti-competitive activity in itself may be legally prohibited but does not amount to the ‘offence’.9 On the other hand, the agreement or collusion is sufficient for purposes of the offence, but provided that it plans the anti-competitive activity, even if the latter is not actually carried out. The offensive cartel is very much a matter of design and collusion. Therefore what can be found in many existing legal definitions of offending cartel activity is a broadly agreed idea of collusive business activity directed at specific anti-competitive outcomes. As will be explored in more detail below, there appear to be two principal elements embedded in this concept of offending behaviour which supply the justification for casting it as an ‘offence’ rather than just a prohibited act. The first may be viewed as the component of censure based on a moral blameworthiness. This arises from the act of collusion, the coming together to plan and implement something which is known to be prohibited and damaging, and to gain unfairly from that injury to others. The second may be seen as the component of harm, comprising the anti-competitive outcome of price fixing, market sharing and the like, although this may be prospective – what is crucial is that it is in mind, desired and planned, but it need not be realised in itself for purposes of the ‘offence’. (The anti-competitive act or instrument in itself (e.g. the price fix or rigged bid) and its market consequences may of

9  That is to say, the matter is subject to regulation, probably prohibition, but is not in itself punishable (by fines, imprisonment or whatever). In terms of Article 81 of the EC Treaty, for example, a number of anti-competitive practices may be prohibited and legally void, but not attract punishment in the usual sense of the word.

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Table 1 Regime

Collusion

Anti-competitive object

US law (Sherman Act)

contract, combination or conspiracy

in restraint of trade or commerce

EC law (Article 81 ECT)

agreement, decision or concerted practice

with the object or effect of restricting, distorting or preventing competition.

UK criminal law (Section 188 of the Enterprise Act)

dishonest agreement

to make or implement arrangements of the following kind (price fixing etc.).

OECD (Recommendation on Hard Core Cartels)

agreement, concerted practice or arrangement between competitors.

to fix prices etc.

course be otherwise legally regulated, typically by being subject to administrative prohibition and scrutiny.) Built into this concept of ‘offending’ cartel activity is a degree of possible exception or exoneration. Not all cartels in the sense of restrictive business agreements or plans are necessarily offending cartels in the sense of being subject to strong censure and punishable. There are many horizontal anti-competitive arrangements which are acceptable as a matter of competition policy since they are considered to have clear pro-competitive outcomes despite their restrictive first appearance: a range of co-operative agreements and joint ventures based on mutually agreed restrictions but which are likely to operate for the benefit of consumers and the market as a whole.10 Such ‘pro-competitive’ horizontal market restrictions are not generally referred to as ‘cartels’ and, although subject to careful regulation, are frequently allowed free operation with a kind of approving nod. The definition of offending cartel behaviour is therefore based on some prior market analysis which has excluded a range of anti-competitive collusion from the scope of the ‘offence’. Moreover, even those ‘classic’ instances of usually uncondonable anti-competitive activity, such as price fixing and market sharing, may be tolerated in some extreme circumstances. The main example would be the so-called ‘crisis cartel’, an essentially defensive rather than creative form of 10  See,e.g. the broad distinction drawn by D.G. Goyder, EC Competition Law (4th ed. Oxford 2003), at p 140, between two major categories (acceptable and unacceptable) horizontal agreements.



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anti-competitive collusion, usually entailing agreed limitations on production in the context of industries facing severe recession or decline. At the EC level, an example of official tolerance of such a ‘crisis cartel’ concerned the Stichting Baksteen in the Dutch brick-making industry. Facing a considerable surplus of brick production in the 1990s, the Dutch manufacturers agreed between themselves on a closure of older and least efficient brick plants which would be supported by a levy to be paid by all the producers to compensate those whose plants were to be permanently closed down. This agreed limitation on production was approved by the EC Commission as the most acceptable way of responding to the undoubted crisis in over-production.11 Thus, it is not easy to provide a hard-and-fast definition of sufficiently harmful anti-competitive conduct for purposes of the cartel offence (or, to use the language of competition policy, to incorporate into that definition a per se prohibition). Implicit in most, if not all, definitions of offending cartel behaviour is a kind of caveat of the kind: ‘listed anti-competitive activity in so far as this is not excepted by competition policy at the time in question’. Such, then, are the general lines of ‘cartel offending’, taking a broad comparative view. The more specific elements of the offence may vary from one jurisdiction to another. There are, in addition, two other particular complicating aspects of this process of offence construction. First, there is the question of formal legal context, or more specifically, whether the offence is ‘administrative’ or ‘criminal’. This is an especially relevant question in the EC context in which, as already stated, the offending conduct is necessarily located within a process which is quite deliberately designated as ‘administrative’ on ‘non-criminal law’. But the dichotomy between administrative and criminal law procedures and penalties is also relevant for a number of national legal systems including that of the UK.12 Secondly, there is the complicating question of individual (or ‘personal’) and corporate liability: whether the offence is committed by a company or by individuals working for that company, or both. For purposes of the ‘European offence’, the (administrative) liability attaches in practice to companies and sanctions are imposed on corporate actors and not on individual executives as a matter of their personal liability. Having said that, individual liability is not wholly irrelevant, however, since such individuals may be prosecuted under national criminal law for their participation in the same cartel which has been dealt with as a matter of corporate liability at the European level.13 Stichting Baksteen, OJ 1994, L 131/15; (1995) 4 CMLR 646. In the UK, the 1998 Competition Act provides for administrative ‘civil’ penalties, while the 2002 Enterprise Act establishes criminal liability for individuals participating in cartel activity. 13  This has certainly happened in recent years in the US, where there have been some notable criminal prosecution of individuals, including non-US nationals, for their participation in transnational cartels. See further below. 11  12 

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These complicating features will be addressed further below, but first, the emergence of the European cartel offence will be discussed, and its method of construction, culminating in the concept of the ‘cartel as a whole’.

4. The Incremental Construction of the European Cartel Offence 4.1. Constructing the Offence: General Problems The European (or EC) cartel offence is very much a product of case law, and of litigation argument relating to evidence and penalties. The legal construction of this ‘offence’ has been based upon the broad wording of the key Treaty article (Article 81) and some provisions in secondary legislation, such as the sanctioning measures in Article 15 of Regulation 17 (Article 22 of the new Regulation 1 of 2003). None of these provisions, as authoritative legal texts, supply any explicit concept or definition of offending and punishable cartel behaviour. Rather, there has emerged by implication an idea that serious infringements of Article 81 may be subject to the penal sanctions provided in Regulation 17 and that such infringements include in particular, some of the ‘classic’ anti-competitive practices listed illustratively in Article 81(1), which have subsequently become more colloquially referred to as ‘hard core cartels’. There is no legislative statement to this effect, but it is now sufficiently clear as a matter of the jurisprudence of the Court of Justice and the Court of First Instance and in the practice (and case law if it may be termed as such) of the European Commission. The argument here is that this concept of offending cartel behaviour has been worked out incrementally in this body of jurisprudence. It has happened naturally enough as defending companies have, over the years and with increasing energy, appealed against Commission decisions impugning their activities and imposing penal sanctions in respect of such activities. The two main routes of legal development within this appellate jurisprudence have been arguments about evidence and arguments about the imposition of fines. Again on reflection, this could be expected: from the point of view of the defending companies there have been two main causes for appeal. First, is there sufficient evidence to characterise their behaviour as participation in a hard core cartel? Secondly, does such evidence justify the quantum of the penalty which the Commission has sought to impose? Both questions have inevitably led the Commission and the Community Courts to search for a more precise definition of the kind of behaviour which justifies this level of censure and sanction – in other words, the search for the sense of offending behaviour. To understand how this process has led eventually to the concept of the ‘cartel as a whole’ as a basis for the cartel offence, it is necessary first of all to say something about the character of the cartel activity in behavioural terms. This



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means taking an internal view of the typical operation of business cartels. What may be contrasted as an ‘external’ perspective is that which is usually found in economic and legal literature on the subject – the operation of cartels within markets, their impact on market conditions and consumer interests, in other words, an assessment of the impact and effects of cartel activity. The ‘internal’ perspective on the other hand is much more concerned with the mindset and attitude of cartel participants, their relations with each other rather than to the market outside, and their motivations: elements of the phenomenon of the cartel which relate more to an ethical rather than economic assessment of behaviour. Economists and competition lawyers have historically been more concerned with market analysis, while the ‘internal’ analysis of cartel activity has more been the domain of sociological enquiry,14 although it should now be increasingly a matter of interest for criminal lawyers.15 The significance of this internal view of cartel operation, particularly for purposes of bringing the matter within the domain of criminal law, is explained by Harding and Joshua in the following terms: It is important to appreciate that individuals who work for companies which participate in cartels have their own perspective on what is happening which is different from that of an economist, a consumer, or a competition regulator. Marketing managers and the like inhabit first of all a specific corporate environment, and then a particular business environment, both of which fashion individual and collective behaviour and outlook. Such people see themselves, for instance, as an executive of Hoffmann-La Roche, working in the pharmaceuticals industry and market, before they see themselves as a subject of textbook discussion or a character in litigation. If it is asked why some companies repeatedly engage in illegal price fixing following successful prosecution and the imposition of sanctions, part of the answer at least should be sought in the disjunction between the ‘external’ viewpoint of the regulator and the ‘internal’ viewpoint of the company executive: different goals, different interests, different values and therefore different behaviour.16 In other words, there needs to be some criminology of cartel participation which can be used to inform the legal process of criminalising the latter. An empirical enquiry into the internal dynamic of business cartels reveals a fairly typical kind of purposive – it might almost be said to be ‘normative’- a structure which gives shape to the cartel as a sociological phenomenon. Although generic descriptions should be treated with caution, since the evidence suggests that See in particular: D. Spar, The Cooperative Edge: The Internal Politics of International Cartels (Ithaca 1994). 15  For a more detailed discussion of these epistemological aspects of the subject, see Ch 10 of Harding and Joshua, Regulating Cartels in Europe, note 2 above. 16  Ibid., at p 33. 14 

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individually cartels do behave and work out differently according their particular membership and even market context,17 nonetheless all cartels do share some common structural features. Thus all anti-competitive business cartels generally have the same common broad objectives and comprise an organisation based upon a sentiment of truce between rivals, with again some common organisational elements. Most importantly, there will be a common denominator of collusion or conspiracy, facilitated by clandestine meetings or subtle contacts, dedicated towards the implementation of a common anti-competitive plan. Secondly, there is typically a temporal element to all this: cartels are not one-off episodes of profit-making, but are continuing and structured projects of co-operation. And thirdly, but as a more complicating element of the cartel, they are characterised by a certain fragility and nervousness. Ultimately companies participate for their own individual economic well-being and profit, to be achieved through collective action, but there is frequently some uncertainty as to the extent and duration of their interest in doing so. Typically, therefore, commitment and loyalty may be variable and, as is characteristic of many conspiracies, the stronger interests of some members may lead to their assumption of a dominating role as the ‘gang leaders’, taking on a directive and perhaps also ‘bullying’ enforcement role. In short, cartels are complex organisations with their own significant internal dynamic and this should be taken into account in any attempt to define legally the kind of participating behaviour which is being characterised as offensive. The relevance of this kind of analysis to the debate on criminalisation of cartels arises from the sense that it is not just the anti-competitive outcome which is objectionable but also and in particular the deliberate, covert, and knowingly unlawful collective scheming and planning to achieve those anti-competitive ends. In this way, the infrastructure of such scheming and planning becomes the focus for its regulation as a delinquent and punishable activity. Thus, what may be seen as especially condemnable in the business cartel is its structure of conspiracy and this supplies the point of distinction between the softer administrative regulation of anti-competitive practice in itself, and the more repressive and increasingly criminal law regulation of ‘hard core’ conspiratorial activity. It is the clearer and more precise identification and definition of this kind of conspiratorial structure that in effect has been sought in recent efforts in a number of jurisdictions to work out the nature of the ‘cartel offence’. In general terms, therefore, a starting proposition in this exercise may be the following phenomenological observation: typically a business cartel involves the participation of a number of corporate business rivals in a number of meetings and agreed acts of implementation over a period of time. The question is then 17  See for instance the discussion and material used by Spar in The Cooperative Edge, note 14 above.



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Table 2 (1) Individual participation in one meeting

(2) Individual participation in one act of implementation

(3) Individual participation in both a meeting and act of implementation

(4) Individual participation in a network of collective activity over time

(5) Collective participation in individual acts (as in (1) – (3) above)

(6) Collective participation in a network of activity over time (as in (4) above)

one of deciding where to locate the ‘offence’ within this bundle of conduct. The difficulty in the question arises from the number of choices: for instance, whether it should be based on individual or collective action; or on specific events (meetings, acts of implementation) or on a course of conduct. Some of the main possibilities in this respect may be sketched out in Table 2. These permutations may be further complicated by the issue of personality – whether the offence is committed by the company or by individuals actually participating in meetings or involved in putting the cartel’s policy into effect on specific occasions. This is far from being an academic exercise, as the Commission found, to some extent to its cost, when companies started to search for grounds for appeal against its decisions. Once the process had matured into something like a criminal proceeding (even if not formally described in those terms), requirements of procedural justice demanded some rigour and clarity in carrying out the ‘prosecution’. To enable an effective exercise of rights of defence in such a procedure, it was necessary to specify more precisely the ‘charge’ against the defending companies. Of what offence they accused and how was it to be proven against them? Moreover, if companies were to be penalised for engaging in such activities, what act or acts more precisely, were the basis for whatever sanctions were being applied? Underlying such questions are the principles of legality and specificity of crimes,18 discussed further below. Important issues of evidence, penality and justice thus require some clearer identification and construction of an offence. For instance, was the offence (or ‘infringement’, to use the formal language of the EC procedure) proven by participation in one meeting or in 18  The principle expressed in Latin as nullum crimen sine lege, nulla poena sine lege. For a useful short discussion of the principle and its international application, see A. Cassese, International Criminal Law (Oxford 2003), pp 139 – 148. As Cassese points out, common law systems tend to be less dogmatic about application of the principle, partly as a result of the readier resort to judge-made law. See also the view of the European Court of Human Rights in SW and CR v United Kingdom, judgment of 27 October 1995.

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a network of activity? The evidence for one or the other could be more or less problematical. Was the penalty based upon participation in a single meeting or other act, or upon a more wide-ranging participation in various activities? The nature and size of the penalty would surely have to relate to the kind and extent of involvement. Whereas administrative regulation can afford to be less specific in its modalities, the ethical and legal stakes are higher in criminal or quasi-criminal proceedings and, at the very least, Article 6 of the European Human Rights Convention and its EC analogies would require a more rigorous specification of what was being impugned and penalised in a more repressive kind of proceeding. Furthermore, once the matter has entered this more specific domain of offence regulation and criminal law and the possibility emerges of a range of specific offensive acts, another requirement of justice and fair treatment enters the picture: the need to guard against double jeopardy. The principle non bis in idem is widely accepted as a guarantee against ‘double counting’ of offences and ‘recycling’ of evidence so as to penalise a defendant more than once in relation to essentially the same act or conduct. A potential legal minefield for a prosecuting authority dealing with cartels would be the temptation to define the overall conduct of the cartel as a number of different specific offences, so generating a higher degree of legal offensiveness than would appear to be factually justified. A crude exploitation of double jeopardy would for example be the imposition of a serial liability and a number of penalties for engaging in a number of meetings, each individually penalised, and in an ‘umbrella’ or network of cartel arrangements at the same time. Such an approach would inevitably be criticised as a violation of the principle non bis in idem. In the EC context, a number of these issues may be conveniently illustrated by the unravelling of the Commission’s case against the Wood Pulp Cartel in the early 1990s.19 In this admittedly complex and convoluted litigation relating to what appeared to be a provable cartel violation, the Commission’s prosecution came to grief in the appeal against its decision, mainly on account of problems in specifying the nature of the offending conduct. The case remains famous in antitrust history mainly for its discussion of oligopoly and the extent to which parallel market behaviour could be relied upon in itself as evidence of collusion. It appears from the report of the proceedings before the Court of Justice that the Commission had some clear material evidence of collusion through a number of 19  Cases 89/85 etc, Ahlström Oy and others v Commission [1993] ECR 1-1307. There is a good deal of legal commentary on the case and its outcome; see, e.g., A. Jones, ‘Wood Pulp Concerted Practice and/or Conscious Parallelism?’, 14 ECLR (1993) p. 273; G. Van Gerven and E. Navarro Varona, ‘The Wood Pulp Case and the Future of Concerted Practices’, 31 CMLRev (1994) p. 575. For a convenient summary of the course of the litigation and main issues, see the account in Harding and Joshua, Regulating Cartels in Europe, note 2 above, at pp. 153 – 159.



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meetings between the parties, but had decided to use the case to try to establish an infringement of Article 81 on the basis of circumstantial market evidence alone. In its Fourteenth Report on Competition Policy the Commission referred to the proceedings as ‘the first time that concertation on prices … is proved by an economic analysis showing that under the given circumstances the similarity of prices was inexplicable unless there was concertation beforehand.’20 The advantage for the Commission in being able to do this was clear: if the argument succeeded it could remove the necessity for searching for difficult-to-discover material evidence of meetings and other communications, allowing instead a concerted practice to be deduced from market analysis. This was an instance of evidential issues leading to the development of substantive law, since logically such an argument might imply that the ‘offence’ consisted in the parallel behaviour, or more precisely in the device facilitating parallel pricing (allegedly in this case a system of price announcements). However, the Commission’s insistence that the price announcements were sufficient evidence of an infringement caused the Advocate General and the Court a good deal of disquiet. Advocate General Darmon stated that he was unsure whether the Commission was prosecuting the price announcements in themselves or using them as the main evidence of prior collusion; he confessed that he found the Commission’s analysis ‘shadowy’.21 The Court asked the Commission to clarify this point but neither Court nor Advocate General considered that the Commission had done so. The Court subsequently rejected the possibility that the price announcements as such could constitute the infringement. Turning then to the Commission’s material evidence of collusion (documents, meetings and telex communications), the Court appeared to reach an impasse with the Commission. The Court asked whether this evidence could be used to prove the case against each member of the alleged cartel individually. The Commission obstinately refused to answer that point directly, asserting that the material evidence was relevant to the cartel as a whole and ‘merely substantiated the evidence based on parallel conduct’.22 This is altogether a somewhat perplexing episode since the Commission had in effect substantiated its case against individual participation,23 but the Court appeared to dismiss this evidence summarily. It is not easy to make sense of the dialogue throughout the whole proceeding, but it does appear that the Commission’s determination to press for an infringement on the strength of circumstantial evidence provoked the Commission, Fourteenth Report on Competition Policy (1985), point 56 (at pp 57–58). [1993] ECR I-1503 et seq., quotation at p 1547. Elsewhere he described the Commission’s position as having the ‘consistency of mercury’ (p 1503). 22  Ibid, at p 1600. 23  The Commission had supplied tables containing full details of each individual manifestation of the alleged collusion: Reply to the Third Supplementary Question, [1993] ECR I-1426-7. 20  21 

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Court into ruling out what would subsequently be termed a ‘cartel as a whole’ conviction. The result was that the Commission eventually lost what should have been a clear case for the prosecution and that the real problem, with hindsight, was not so much the oligopoly and parallel pricing issue, but the inability to specify and agree on the precise nature of the offending conduct.24 The significance of this imbroglio in the Wood Pulp proceedings for present purposes lies in its demonstration of the need for a clearer sense of the degree of offending conduct justifying a penal response under Article 81. The absence of a more precise offence definition bedevilled the whole range of argument in Wood Pulp. The forging of the European cartel offence had become a matter of legal necessity. 4.2. Constructing the Offence: Specific Elements Returning to the point made above that a business cartel is an organisationally complex phenomenon, the legal challenge then is to extract from that complex body of activity an idea of the essentially offensive conduct. In particular, a way has to be found of ordering collective action and individual participation within a single framework of conduct. The Commission’s bold stroke in Wood Pulp had failed to achieve that end by not stating prosecuting objectives with sufficient precision and at the same time raising concerns about fair treatment. In fact, the high profile of the Wood Pulp proceedings may create a somewhat misleading impression of legal meandering at that time at the European level, since matters were not as untidy as the arguments in that litigation might have suggested. With the benefit of hindsight, Wood Pulp may be seen as a diversion occasioned by the Commission’s gamble on an easier route to cartel convictions. Harding and Joshua summarised the episode in the following terms: The Commission had been over-ambitious in the method of its prosecution of the Wood Pulp Cartel. On the one hand, it attempted to indict the whole cartel by focusing on the system of price announcements as catch-all evidence of group collusion. On the other hand, it also tried to penalize more specific infringements within the cartel network, using very much the same evidence. In this way the Commission fell foul, unsurprisingly, of double jeopardy rules and a suspicion of ‘recycling’ evidence for multiple charges. A preferable approach would probably have been for the Commission to have alleged one grand overall design to stabilize prices which had been furthered in different ways by different participants without necessarily having been in actual contact with each other.25 24  This may appear at first a surprising conclusion in the context of much of the commentary on the Wood Pulp case, which made much of the oligopoly issue and use of expert evidence as a major legal setback for the Commission; see, e.g., G. Van Gerven and E. Navarro Varona, loc.cit. This may obscure the fact that the Commission had a strong case, which came to grief through a miscalculation in legal strategy. 25  C. Harding and J. Joshua, Regulating Cartels in Europe, note 2 above, at p 160.



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Yet progress had already been made in the direction of forging an acceptable concept of cartel offending, a fact rather obscured by the Wood Pulp adventure. Many of the Commission’s successful cartel prosecutions during the 1980s had in fact been presented as cases against a network of activity rather than against discrete anti-competitive actions on the market, emphasising the fact of collusive design rather than specific restrictive conduct. What was emerging from such cases was a charge of individual participation26 in a collective enterprise of planning and implementing anti-competitive objectives. This approach succeeded in integrating both elements of on the one hand (a) individual and collective participation and on the other hand of (b) programmatic and specific activities: what would eventually be termed the ‘cartel as a whole’. This way of framing the charge was approved by the Court of First Instance in its 1991 judgment dealing with the appeal against the Commission’s decision on the Polypropylene Cartel.27 The Court agreed that: In view of their identical purpose, the various concerted practices followed and agreements concluded formed part of schemes of regular meetings, target pricefixing and quota fixing. Those schemes were part of a series of efforts made by the undertakings in question in pursuit of a single economic aim, namely to distort the normal movement of prices on the market in polypropylene. It would be thus artificial to split up such continuous conduct, characterized by a single purpose, by treating it as consisting of a number of separate infringements. The fact is that the applicant took part – over a period of years – in an integrated set of schemes constituting a single infringement, which progressively manifested itself in both unlawful agreements and unlawful concerted practices.28

This statement therefore set the scene for treating cart l activity as a holistic event: a bundle of meetings, plans, and communications moving e towards a commonly agreed anti-competitive goal. In this way, the cartel as an enterprise involving a programme of activity, is the offence. But it is an offence committed simultaneously by a number of individual companies and while in a more generic sense they commit the same offence, the extent of their participation may differ, quantitatively and qualitatively, and for that reason their individual liability to censure and penalty may vary. There are therefore two levels of liability: (a) a generic or joint liability in respect of participation in the cartel – this may be seen as equivalent to criminal liability; 26  It should be remembered that companies are each ‘charged’ individually and penalised individually for their cartel activities, and the cartel is not itself the subject, but rather the object, of legal proceedings. 27  Cases 1/89 etc, Rhône-Poulenc v Commission [1991] ECR II-867. 28  [1991] ECR II-1074-5. The argument was also concerned with the distinction between the terms ‘agreement’ and ‘concerted practice’ as they appear in the text of Article 81(1). The Court avoided a dogmatic approach on this question, confirming the Commission’s view that the infringement could collectively comprise both agreements and concerted practices and that it was not necessary to charge the two distinctly.

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(b) an individual or specific liability to penalties dependent upon the nature and extent of that member’s actual participation – thus, in effect a penal liability. In this way, an important feature of conspiracy is taken into account: that any conspiracy requires the collusion of two or more parties, but the role of the members of any conspiracy may not be the same in terms of moral or legal culpability. To join in the first place is to make the collusion possible and attracts a ‘cardinal’ liability (to employ sentencing vocabulary), but the more precise or ‘ordinal’ liability is measured by the degree of involvement. The casting of the cartel offence in these terms has been approved by the Court of First Instance.29 It has confirmed that the offence resides in the cartel as a whole, entailing a primary liability arising from participation in principle, irrespective of the extent of that participation. The Court has stated that: An undertaking may be held responsible for an overall cartel even though it is shown to have participated directly only in one or some of its constituent elements if it is shown that it knew, or must have known, that the collusion in which it participated, especially by means of regular meetings organised over several years, was part of an overall plan intended to distort competition and that the overall plan included all the constituent elements of the cartel.30 The Court explained that this was not to impute any kind of collective or vicarious responsibility31 – it is an individual responsibility arising from a willingness to join the plot, no matter how that may work out individually for that party deciding to participate. Taking this approach, the seriousness of the ‘cardinal’ offence should also be based on an evaluation of the cartel as a whole: its anti-competitive damage, duration, devices and collective attitude. But ultimately, any penalties are to be applied individually, and that requires a consideration of the involvement of each member individually, in terms for instance of organisational role and commitment (ringleader? passive follower?) and actual support over time. Such prosecutorial strategy was explained by the Commission in another case in the following terms: The proper approach … is to demonstrate the existence, the operation and salient features of the cartel as a whole and then to determine (a) whether there is credible and persuasive proof to link each individual producer to the common scheme and (b) for what period each producer participated.32 Cases T-305/94 etc, LVM and others v Commission [1999] ECR II-931. [1999] ECR II-1146. 31  Ibid., at p 1145. On the modern rejection of collective criminal liability, see Cassese, International Criminal Law, note 18 above, at pp 136 – 9: ‘The principle of individual autonomy …. is firmly rooted in modern criminal law’ (at p 137). This aspect of the subject is discussed further below. 32  Cartonboard Cartel, OJ 1994, L 243/1 at p 38. This statement however does imply that individual liability is simply a matter of the length of time a particular party was involved, whereas in practice 29  30 



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In summary, therefore, the offence charged is firstly that of being implicated in the planning and operation of the cartel. But, in terms of more precise liability and in particular the application of penalties, account needs to be taken of the nature of each member’s participation. The latter takes into account the internal reality of business cartels, as described revealingly in the following description from the Commission’s decision relating to the Pre-Insulated Pipes Cartel: The participants had set up an infrastructure of regular meetings and were involved in a continuing process of business diplomacy aimed at reconciling their respective interests. For the purpose of forming and carrying out their scheme, the participants did things which they had devised and agreed to do, including (but not limited to) participating in meetings to discuss prices, sales quotas and project-sharing; agreeing during those meetings to charge particular prices and to increase and maintain prices; drafting, agreeing and distributing model price-lists to be used for co-ordinating pricing; exchanging information on sales volumes, market size and market shares so as to set up a quota system; and agreeing a sales quota system. The discussions may have involved a shifting constellation of alliances, even threats of reprisal or hostile action.33

That is a fair description of the cartel as a whole, and once there is evidence to link a company with that network of activity (though not necessarily every aspect of it) there is a basic liability. The more exact liability will then depend on proof of the actual extent of involvement. As the Commission further explained in that decision: The infringement consisted of a complex of agreements and concerted practices in which each undertaking played its part. It is not alleged that each … participated in each and every aspect of the anti-competitive arrangements set out or did so for the whole duration of the infringement.34

From this case it may be seen that the individual participation and hence liability to penalties is commonly worked out by reference to certain main criteria: the economic capacity of the company to cause damage to competition; the duration of its adherence to the common scheme; and aggravating or extenuating circumstances of participation (such as being the ringleader on the one hand, or an unwilling and coerced member on the other hand).35 What is being described here is in one sense little more than the familiar stuff of criminal law, but since it has not been formally presented by the Commission or the Community Courts as criminal law, that fact may not be so evident. In terms of substantive criminal law, the ‘offence’ is one of participation in a collective action. The second level of liability described above is, in criminal law it is also (and significantly) a matter of attitude and organisational role. 33  Pre-Insulated Pipes, OJ 1999, L 24/1, at p 51. 34  Ibid., at p 55. 35  Ibid., pp 61–62.

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terminology, the location of an individual instance of offending on a sentencing tariff. From a criminal law rather than a competition law perspective, that is what is happening in such European cartel cases. But there are some interesting jurisprudential consequences of this process of offence construction to be considered further.

5. The European Cartel Offence: Problematical Features 5.1. Cartel Activity as Conspiracy: Independent or Inchoate Offending? The cartel offence, both in its European form and more common form, therefore appears to be, in general terms, an offence of conspiracy. In the context of English criminal law, this would render it an inchoate or preparatory kind of offence,36 like attempts and incitement, something done en route to the commission of a further ‘substantive’ offence. However, it would seem that on closer examination the European version of the offence (like, to some extent, its American counterpart under the Sherman Act37) is not conceived as inchoate, but as a full offence in its own right. There would seem to be a significant difference of emphasis as between the English criminal law of conspiracy and the EC cartel infringement. In the former case, the emphasis is upon the planned further criminal offence, and the conspiracy is clearly then an ancillary offence, and one with an arguable justification. As Ashworth has commented: An individual who has declared an intent to steal certain property has committed no offence; two or more individuals who agree to do the same thing may be convicted of a conspiracy to steal. How strong are the justifications?38

However, as a matter of wider principle it is not necessary to view conspiracy as being only ancillary and inchoate in this way; it may be invested with an independent element of offensiveness, as may be seen from the American model of the offence. The US Supreme Court has analysed the concept of criminal conspiracy in the following terms: 36  One of the reasons for casting the new cartel offence under English law (Section 188 of the Enterprise Act 2002) as a ‘dishonest agreement’ rather than a conspiracy was that the latter would have to have been an inchoate offence preparatory to committing a further criminal offence. The anti-competitive objective would not have been criminal in itself. Importing the concept of dishonesty may bring further problems, however – see the discussion in C. Harding and J. Joshua, ‘Breaking Up the Hard Core: the Prospects for the New Cartel Offence’, loc. cit, p. 933. 37  As was noted in a standard text on American criminal law: ‘… Conspiracy cannot be viewed solely as an inchoate crime. If it were, then it would hardly make sense to say that it “is an offence of a grave character …” … Nor would it be sensible to allow punishment for both the conspiracy and its criminal object. The other function of conspiracy is as a sanction against group activity.’ (W.R. LaFave and A.W. Scott, Handbook on Criminal Law (St Paul 1972), p. 460. 38  A. Ashworth, Principles of Criminal Law (4th ed. Oxford 2003), at pp 458–459. Ashworth provides a useful overall discussion of the cogency of the English offence of conspiracy as an inchoate offence, ibid., at p 455–464.



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A conspiracy is a partnership in crime … It has ingredients, as well as implications, distinct from the completion of the unlawful project. As stated in US v Rabinowich 238 US 78: ‘For two or more to confederate and combine together to commit or cause to be committed a breach of the criminal laws, is an offence of the gravest character, sometimes quite outweighing, in injury to the public, the mere commission of the contemplated crime. It involves deliberate plotting to subvert the laws, educating and preparing the conspirators for further and habitual criminal practices. And it is characterised by secrecy, rendering it difficult of detection, requiring more time for its discovery, and adding to the importance of punishing it when discovered.’39

This analysis supplies an independent sense of criminality to the activity of planning, plotting and agreement, which then provides a more convincing ethical basis for the offence than that which may be found in the English inchoate version of the offence. As Dennis has also concluded: It is the element of a plot, something which can arise only from the agreement of two or more persons, which is then the essential difference between an agreement to commit a crime and the resolve or preparation of an individual acting alone to achieve the same crime … what cannot be present in the case of an individual are the elements of mutual support and encouragement amongst the conspirators, and the sense of obligation arising out of the mutual promises which constitute their contract. Indeed, one variation of this view of conspiracy would be to say that every conspiracy involves a voluntary replacement of the obligation to obey the law by an obligation to another to break the law.40

Such arguments are useful for understanding the idea of cartel offending as it has emerged in the European context, in which the element of collusion is also significant in supplying the sense of offending conduct, itself distinct as a morally impugnable act from the anti-competitive objectives of the colluding parties. Indeed, this kind of analysis could be usefully and more explicitly employed by the Commission and Community Courts in explaining and justifying the sanctions used in cartel cases. 5.2. The Precise Definition of the Cartel Offence: The Principle of Specificity The need for a more precise definition of the European cartel infringement has already been discussed in some detail above. Amongst other things, the process of offence definition has served an underlying idea of justice, sometimes termed the principle of specificity. In the words of Cassese:

Pinkerton v US (1945) 328 US 640, 644. I.H. Dennis, ‘The Rationale of Criminal Conspiracy’, 93 Law Quarterly Review (1977) p. 39, at p 52. Cf this view of the nature of conspiracy with the analysis of the business cartel as a ‘private treaty regime’, presented by C. Harding and J. Joshua, Regulating Cartels In Europe, note 1 above, at p 25. 39  40 

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christopher harding Criminal rules must be as specific and detailed as possible so as to clearly indicate to their addressees the conduct prohibited, namely, both the objective elements of the crime and the requisite mens rea. The principle is aimed at ensuring that all those who may fall under the prohibitions of the law know in advance which specific behaviour is allowed and which conduct is instead proscribed.41

It has been argued above that specificity in this sense was only properly satisfied in the context of the European cartel infringement when the nature of the offending conduct as the ‘cartel as a whole’ had been clarified by the Commission and the Court of First Instance. Thus it may now be claimed, for purposes of giving legal advice, that companies could be directed to the EC case law for a sufficiently clear idea of the offending conduct which should be avoided. What remains intriguing, however, is the fact that arguments relating to specificity were not pressed more forcefully during the earlier period when the offending conduct was not so well defined. This is surprising in view of the fact that companies were regularly alleging a range of procedural violations and infringements of their rights of defence, sometimes with little real prospect of success, in appeals against Commission cartel decisions. Admittedly, the principle of specificity has been usually invoked in the context of criminal proceedings, and action taken under Article 81 is not of course a criminal procedure as such. On the other hand, that has not prevented the use of argument by analogy on other points relating to defence rights. Even in the Wood Pulp litigation, where (as already indicated in the discussion above) the real problem for the Commission was its lack of specificity, this issue arose more from the inquisitorial process involving the Court and the Commission rather than from the adversarial arguments as between the parties. In the adversarial context, cartel appellants appear to have had only an incidental awareness of the potential of this kind of argument, mainly by sometimes reaping the benefit of evidential argument, to the effect that the Commission had not specifically proven the duration of or participation in infringements. But from the perspective of defending parties, this may well be an opportunity that has passed into history. 5.3. Individual Responsibility for Collective Action Another distinctive feature of the cartel offence resides in the fact that it comprises both a collective and an individual participation. Collusion is by definition a group activity, but in the final analysis responsibility lies with each individual participant in relation to that person’s willingness and decision to join the group. As a result, it appears that, while the cartel is the subject of prosecution, each of the individual participants comprise a number of subjects of punishment. 41 

Antonio Cassese, International Criminal Law, note 18 above, at p 145.



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This characteristic of the cartel infringement has been exploited in legal argument. For instance, there have been attempts to impugn the Commission’s case in cartel proceedings and in particular its reliance on the concept of the ‘cartel as a whole’, as an infringement of the ‘universally recognised principle’ of personal responsibility (or, conversely, the prohibition of collective responsibility).42 The Court of First Instance rejected this argument, referring to the Commission’s imposition of liability on individual companies on the basis of their awareness of and willingness to participate in the cartel as a whole.43 One way of understanding this conclusion is to present the argument in terms of the criminal law vocabulary of actus reus and mens rea. A crucial part of the actus reus of the infringement is the collusion as manifested in ‘the cartel as a whole’ – the meetings, communications, and activities comprising the planning and concluding of agreements. The actus reus – or, at least, this essential part of it – is a collective activity. But the mens rea is individually located in the awareness and willingness of each participant to participate. This view of the mens rea is clearly articulated in that part of the Court’s judgment in LVM which states that responsibility is based on the fact that an undertaking knew, or must have known, that the collusion in which it participated … was part of an overall plan … and that the overall plan included all the constituent elements of a cartel.44 Issues of personal and collective responsibility may be thus clarified in this way, at the same time illuminating the logic of collusive offending. There must be a collective activity (actus reus), but that activity depends upon each members’ willingness to participate, the latter (mens rea) residing in a knowledge of and intention to contribute to the conspiracy. 5.4. The Personality and Identity of the Offender A further characteristic of cartel infringements arises from the factual basis of business collusion: that this is at one level an activity of corporate business actors, but is more specifically perpetrated by individual human actors who are employees or representatives of these companies. Theoretically, it is then possible to talk in terms of both corporate and individual (or personal) responsibility co-existing at one and the same time. This presents in principle, therefore, a choice of legal strategy – to take action against the corporate person, the individual employee or representative, or both. In exercising this choice, there are implications for both principles of justice (double jeopardy questions), and issues of penality (forms of penalty). 42  For instance, the argument presented by Elf Atochem, BASF, ICI and others in Case T-305/94 etc, LVM and others v Commission [1999] II-ECR, at p 1144. 43  Ibid., at pp 1145–46. 44  Ibid., at p 1156.

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Up to a point, this issue is simplified for purposes of European Community law on account of its limited terms of reference. Article 81 refers to the activities of ‘undertakings’ (usually companies or other types of corporate person), and the range of ‘administrative’ penalties at the Commission’s disposal does not include human-target measures such as imprisonment. There is arguably, then, no legal basis for taking action on the basis of Article 81 against individuals acting for their companies in cartel negotiations.45 But it is worth noting that there are other approaches elsewhere. Under US antitrust law, sanctions may be and are increasingly frequently applied to both companies and their executives in relation to criminal violations of the Sherman Act: a corporate fine, plus a fine and/or a prison term for the individual.46 Recently, for example, in proceedings relating to the Monochloroacetic Acid (MCAA) Cartel in the San Francisco District Court, a French executive with Elf Atochem received a 90 day prison sentence and a fine of $50 000 for his role in organising a market sharing conspiracy, while the company had already been subject to a $5 million fine.47 This is just one among a number of recent instances of both a company and its executives being charged as co-conspirators, each committing the same offence under Section 1 of the Sherman Act.48 The American approach, employing the offence of conspiracy, thus treats different types of legal person as co-defendants, committing together the same offence. In this way, the separation of legal personality navigates a way around any charge of double jeopardy. In effect, therefore, within the cartel companies conspire with each other, while at the same time, within each company individual executives conspire with the company. But under UK lw (and also under UK law plus EC law) there is a different approach. Offending conduct and sanctions are both differentiated. An ‘administrative’ infringement and fine may be applicable to the company under Section 16 of the Competition Act 1998 and/or under Article 81 of the EC Treaty. Also now, under Section 188 of the Enterprise Act 2002, individual executives may be guilty of the ‘cartel offence’ by dishonestly entering into an agreement to form a cartel contrary to the competition rules, and thereby risk a prison term.49 Again,

45  Article 81 refers to ‘agreements between undertakings’, which would in practice have to be the companies as the legal persons entering into agreements or participating in concerted practices. 46  For a recent overview, see C.J. MacAvoy and K.W. Donnelly, ‘Trends in US government antitrust enforcement’, Ch. 2 in The Antitrust Review of the Americas 2002 (Global Competition Review, special report, 2002). 47  Department of Justice press release, 7 August 2002, www.usdoj.gov. A 90-day prison term couple with a fine of $50 000 appears to be the present norm for individual penalties. 48  See C.J. MacAvoy and K.W. Donnelly, loc.cit. 49  For a fuller discussion, see Harding and Joshua, note 1 above, at pp 260 – 66. See also the OFT Consultation Paper, ‘Powers for investigating criminal cartels’, April 2003 (www.oft.gov.uk).



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double jeopardy is circumnavigated, but this time by allocating different species of offending conduct to the different legal persons. Although both US and UK law thus achieve, in different ways, a bifurcation of responsibility and penalties, there remain however some unresolved questions in terms of criminal jurisprudence. Both approaches rest on the assumption that responsibility for cartel behaviour may be divided, either by separating legal personality or by carving distinct offences out of the overall cartel activity. Both exploit the organisational complexity of cartels, in terms of their participating actors, and in terms of their range of activity. Yet the cogency and justification for doing so is not completely without question. Is the ‘cartel as a whole’ justifiably divided in these ways for purposes of law enforcement? Underlying this question are more fundamental questions of personality and responsibility: who should most appropriately be considered responsible for the cartel – individuals, companies, or both? This is not to assert that the outcomes in any of these jurisdictions (US, UK or EC) are wrong or insupportable; rather, that they may be contestable. The fact that there are different legal outcomes in terms of responsibility and penalty, or different legal routes to these outcomes, reveals the underlying uncertainty of basic jurisprudential argument. Indeed, the discussion at this point reaches the edge of murky philosophical water regarding the possibility of two separate identities, one human and one corporate, in relation to legal liability for the same act. This would present a problem for example for conventional legal analysis under English criminal law. Any proposal to separate the ‘mind’ of a company from that of its component human actors would probably encounter objections embedded in the empirical tradition of ‘methodological individualism’ characteristic of English criminal law.50 This point is made by Simester and Sullivan, when they say that states of mind such as intent, dishonesty and recklessness: would not be captured by posing questions relating to general corporate performance. Attributing intentionality and other states of mind to a company directly, without any mediation through the intentions and states of mind of persons connected with it, would require full adoption of the view that companies are, sufficient unto themselves, moral agents or ‘intelligent machines’. This seems an unlikely prospect … one may assert that companies, in terms of their activities and planning, depend on human agency and are not, in terms of conduct or states of mind, some form of non-human sentient creature.51

Or, to put the matter precisely, in the words of a leading British judge:

50  For a characteristic exposition, see H.L.A. Hart, Definition and Theory in Jurisprudence (Clarendon Press, 1950, at p 21. 51  A.P. Simester and G.R. Sullivan, Criminal Law: Theory and Doctrine (2nd ed. Oxford 2003), pp 261–62.

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christopher harding a reference to the company ‘as such’ might suggest that there is something out there called the company of which one can meaningfully say that it can or cannot do something. There is in fact no such thing as the company as such, only the applicable rules. To say that a company cannot do something, means only that there is no one whose doing of that act would, under the applicable rules of attribution, count as the act of the company.52

Under such an approach, if the corporate act depends upon attribution from a human act, then the two actors are one and the same and considerations of double jeopardy might come to the fore. However, to return to the main line of argument: as stated above, the present position regarding the European cartel offence is in this respect relatively straightforward, as a matter of corporate liability and administrative penality. But the fact that the EC legal position now ‘cohabits’ with different (i.e. criminal law) positions under some Member States’ law suggests that some interesting legal questions may be lurking for the not too distant future.

6. Conclusion In these times when participation in an anti-competitive business cartel has become, not just something which is legally prohibited, but also under an increasing number of jurisdictions, a criminal activity, it is important to note that there is now a firm legal sense of offending cartel conduct as a matter of EC law. It has become possible to talk about a defined ‘offence’ (though still technically termed an ‘infringement’) at the European level, compromising participation in a ‘cartel as a whole’ in the sense employed by the European Commission and Community Courts. This European ‘offence’ thus takes its place within the range of ‘cartel offences’ which now exist in a number of jurisdictions, such as the long-established conspiracy offence under Section 1 of the Sherman Act in the US, and the new cartel offence provided for in the recent Enterprise Act in the UK. But, as may be seen from the discussion above, there are differences in the more precise legal definition and jurisprudential character of these various cartel offences. In a comparative perspective, the European version of the offence has some distinctive (though not unique) features: most importantly, it attaches to corporate actors, it is administrative rather than criminal, and it would appear to be a full, not just inchoate offence. It is important to take on board these characteristics of offending conduct now being prosecuted via the application of the EC competition rules, in order to appreciate both its place in the global scheme and also any interaction with the application of analogous rules in other jurisdictions. 52  Lord Hoffmann, for the Privy Council in Meridian Global Funds Management Asia Ltd v Securities Commission (1995) 2 AC, 500, at pp 506–57.

Union Regulatory Criminal Law Competence after Lisbon Treaty Jacob Öberg 1 PhD researcher, European University Institute, Florence, Italy

1. Introduction This article analyse the scope of the Union’s regulatory criminal law competence subsequent to the ratification of the Lisbon Treaty. The article is primarily focussed on examining what legal limitations that can be imposed on the Union’s competence to impose criminal penalties under the new legal basis in Article 83(2) TFEU. The examination will also analyse and scrutinize the scope of the Union’s criminal law competence in the light of the principle of democracy.2 In particular, the article will examine in detail whether criminal sanctions are “essential” for the effective implementation of Union policies. It will be discussed if the “essentiality” requirement implies that the ECJ should review EU criminal law legislation in the light of the principle of proportionality in Union law. In this regard, it will be analysed what standard that the ECJ should adopt in relation to judicial review of EU criminal law enactments. This implies that the article will particularly scrutinize whether the principle of proportionality can provide an argument against conferring a criminal law competence to the European Union. The article will as a case study discuss whether criminal sanctions are “essential” for effective implementation of Union competition policies. In this regard it will be considered whether criminal sanctions are suitable and necessary for the effective implementation of Union competition policies. 1  The author would like to thank Professor Giorgio Monti (EUI) for his valuable comments and patient support in the drafting process. 2  Nulla poena sine lege parlamentaria. The democratic principle is in this respect concerned with input legitimacy and implies that EU criminal law shall be adopted through the ordinary legislative procedure pursuant to Article 294 of the Treaty of the Functioning of the European Union (TFEU). Only the ordinary legislative procedure can provide the necessary democratic legitimacy for EU criminal law legislation since it provides for dual legitimacy; direct legitimacy through the elected representatives of the European Parliament (EP) and indirect legitimacy through the indirectly elected governments of the Member States.

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Finally, the article will discuss the procedural requirements for adopting criminal law legislation. In particular it will be analysed how much harmonisation is needed for the adoption of Union criminal law legislation and whether the Union need to adopt a prior harmonisation measure in order to enact criminal law measures on the basis of Article 83(2) TFEU. It is firstly submitted in the article that the “essentiality” requirement in Article 83(2) TFEU includes a strict proportionality requirement. Further, when the proportionality test is applied to the case of criminal sanctions in Union competition law it is claimed that criminal sanctions are not “essential” for the effective implementation of Union competition policy. It is finally contended that the Union could not use the previous harmonisation measure in Regulation 1/2003 to justify the use of Article 83(2) TFEU given that Regulation 1/2003 had been adopted on the basis of Article 83 EC (now 103 TFEU) which only provides for the consultation procedure. In order to respect the democratic principle, the Union therefore needs to adopt two directives in order to enact criminal law legislation on the basis of Article 83(2) TFEU. In order to articulate the core issue of the article, i.e., the scope of Article 83(2) TFEU, it is appropriate to commence the analysis with a close examination of the wording of this provision: (I)f the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, directives may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned. Such directives shall be adopted by the same ordinary or special legislative procedure as was followed for the adoption of the harmonisation measures in question….

As can be seen from a glance of the provision, there are essentially three requirements which have to be satisfied for the adoption of a criminal law directive; two procedural and one substantial. The substantial requirement is that criminal sanctions shall be ‘essential’ for the effective implementation of Union policies. The first part of this article will comprehensively analyse this question.3 The second part of the article will analyse the procedural requirements.4 The first procedural requirement is that there need to be previous harmonisation measures in the policy field which the Union legislator intends to criminalise. In this regard, it will be discussed what is the meaning of “previous harmonisation measure”. The second procedural requirement is that Union legislation should be adopted through the same ordinary or special legislative procedure. In this regard, it will be particularly discussed how much harmonisation is needed in 3  4 

Section 3. Section 4.



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a field of law for the adoption of a criminal law directive and if the Union need to use two measures to adopt criminal law legislation. Finally, the article will summarize the results of the examination and make some conclusions on the scope and limits of the Union’s regulatory criminal law competence subsequent to the Lisbon Treaty.5

2. The Substantive Requirement for Enacting Criminal Law Legislation under Article 83(2) TFEU 2.1. The Essentiality Requirement 2.1.1. Linguistic Analysis of the ‘Essentiality’ Requirement When interpreting the meaning of “essential”, it is appropriate to commence the examination with performing a linguistic analysis of the expression in its proper context and try to compare the different language versions of the Treaty.6 If we commence the analysis with the English language version of the Treaty, it is suggested that ‘essential’ as a legal concept means that without factor x, result y cannot take place. To take a very simple example, one can imagine a situation where a lower court shall, as a matter of procedure, consider both res judicata (i.e. law x) and litispendens (law y) to give a valid decision.7 If any one of these legal principles is disregarded, the judgment is not valid and thus not enforceable. Consequently, it is essential that both res judicata and litispendens are considered to give a valid decision. In the Swedish language version of the Treaty, the expression ‘nödvändig is used, which translates to ‘necessary’. The use of the expression ‘absolut nødvendig’, which is employed in the Danish language version of the Treaty to describe the Union’s competence to resort to criminal sanctions, translates roughly to the expression; ‘absolutely necessary’ in the English language. In the Italian version of the Treaty, the term ‘indispensabile’ is used to describe when the Union can resort to criminal sanctions. The Italian language version of the Treaty seem on its face to correspond to the French language version of the Treaty, which employs ”indispensable ”in relation to the Union’s competence to impose criminal sanctions. In the Spanish language version of the Treaty the word ‘imprescindible’ is used to describe when the Union can resort to criminal penalties. This translates roughly to “absolutely necessary”. In the German language version the

Section 5. Case C-283/81, Srl Cilfit and Lanificio di Gavardo SpA v. Ministry of Health, and [1982] ECR 3415. 7  See Chapter 13, Section 6 and Chapter 17 Section 11 of the Swedish Code of Judicial Procedure of 1942 (SFS 1942:740), DS 1998:000. See . Last accessed on 12 May 2011. 5  6 

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word ‘unerlässlich’ is used to illustrate when the EU can use criminal sanctions. This translates to ‘indispensable’ in the English language. Even if the linguistic comparison only is restricted to seven language versions, it is feasible to make some tentative assertions, particularly since the language versions of the most influential Member States have been analyzed.8 All the language versions analysed apart from the Swedish language version, which use the term “necessary”, seem to suggest that the relevant condition is “indispensable” or “absolutely necessary”. It thus seems that it is only when it is “absolutely necessary/indispensable” for the effective implementation of a Union policy that the Union should resort to criminal sanctions. It follows that ‘essential’ in the sense of Article 83 (2) TFEU implies that “without criminal sanctions (X)  the effective implementation of Union policy (Y)  cannot take place”. Consequently, it must be proved that if other sanctions than criminal sanctions are used there can be no effective implementation of Union policies.9 Consequently, it follows that the Union legislator will have a heavy burden of proving that criminal sanctions are indispensable for the effective implementation of the Union policy concerned.10 2.1.2. Does the Requirement of “Essentiality” Imply a Proportionality Assessment? 11 ‘Essentiality’ implies, as stated above, that the Union legislator must prove that the current enforcement regime cannot achieve effective implementation of the Union policy concerned and secondly that ”criminal sanctions” are more efficient than existing and potential sanctions within the relevant policy field of law concerned, to enforce the relevant Union policy. In this regard, it is necessary to analyse whether the principle of proportionality in Union law could be subsumed under the concept of ‘essentiality’. If we take a closer look at the principle of proportionality, in the light of the case-law of the ECJ, this is a test of three limbs, as follows:12

8  This is based on the population and voting rights in the Council of the European Union. The selection of Sweden and Denmark is based on the present author’s language skills. 9  D. Chalmers, G. Davies and G. Monti, European Union Law (OUP, 2010), p. 617. 10  The European Court of Human Rights clearly states that the condition “indispensable” provides less margin of appreciation to the Contracting States than “necessary”: Handyside v. United Kingdom (1976) Series A No 24 (1979–80) 1 EHRR 737, paras. 48–49. 11  G. De Burca, ‘The Principle of Proportionality and its Application in EC Law’, Yearbook of European Law, 1993, pp. 105–151; T.I. Harbo, The Function of Proportionality Analysis in European Law, Thesis submitted with a view towards obtaining a degree of Doctor of Laws of the European University Institute, 26 January 2011. 12  P. Craig, EU Administrative Law (OUP, 2006), p. 656; T. Tridimas, General Principles of EU Law (OUP, 2006), p. 139.



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i) The Union legislative measure must pursue a legitimate objective and the measure must be conducive to reach the pursued objective (adequacy).13 ii) The Union legislative measure must be indispensable for achieving the pursued objective (necessity).14 iii) The Union legislative measure must not entail disproportionate or excessive effects on the individual/s affected by the legislative act, i.e. the effect of the measure shall provider larger benefit for society than the losses to a person’s rights and interests caused by the legislative measure (proportionality stricto sensu).15 Based on the abovementioned linguistic analysis, the “essentiality” requirement thus implies that in order to establish a competence based on Article 83(2) TFEU, the Union legislator need to fulfil all the limbs of the proportionality test. Accordingly, the Union legislator must prove that: i) criminal sanctions are conducive to achieve the effective implementation of Union policies, ii) criminal sanctions are more efficient than other less restrictive measures to achieve the pursued objective of securing the effective implementation of Union policies, iii) the disadvantages caused by criminal sanctions must not be disproportionate in relation to the pursued objective of ensuring the effective implementation of Union policies.16 Proportionality is therefore encompassed within the assessment of legality for criminal law measures based on Article 83(2) TFEU. 2.1.3. Proportionality and Intensity of Judicial Review of Union Legislation It is important when discussing judicial review of EU criminal law legislation to more specifically analyse how the ECJ in its case-law have dealt with proportionality in relation to Union legislation. What intensity of review should be adopted in relation to EU criminal law legislation? Should a strict intensity of review be adopted or should a more lenient approach (“manifestly inappropriate”) be the guiding principle? To make any conclusions on this, a review of the ECJ’s case-law is necessary. Due to the substantial amount of case-law, the choices of cases are highly selective. The guiding principle for selection is whether the case is illustrative for the application of the principle of proportionality in relation 13  Case C-181/84, The Queen, ex parte E.D. & F. Man (Sugar) Ltd v. Intervention Board for Agricultural Produce (IBAP) [1985] ECR 2889; P. Asp, ‘Two Notions of Proportionality’, in K. Nuotio (ed.), Festschrift in Honour of Raimo Lahti (Forum Iuris, 2007), p. 208. 14  Case C-382/87, Buet and others v. Ministère public, [1989] ECR1235; Tridimas, supra note 12, p. 139. 15  Case C-44/79, Liselotte Hauer v. Land Rheinland-Pfalz [1979] ECR 3727; N. Emiliou, The Principle of Proportionality in European Law – A Comparative Study (Kluwer Law International, 1996), pp. 192–194 16  ‘Draft Council conclusions on model provisions, guiding the Council’s criminal law deliberations’, JAI 654, DROIPEN 118, 16542/2/09, 9th October 2009, p. 4; Case C-356/97, Molkereigenossenschaft Wiedergeltingen eG v. Hauptzollamt Lindau [2000] ECR I-5461, para. 36.

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to Union legislation.17 In addition, another selection principle is the novelty of the case in order to reflect the most recent articulation by the ECJ of the proportionality test. I will only discuss two cases; one concerning judicial review of Union policy measures and one concerning judicial review of administrative penalties. As will be seen below, the ECJ adopts different tests depending on whether it is a broad Union policy measure relating to discretionary policy choices or whether it is a detailed implementing Union measure concerning administrative or financial penalties. In this regard, it is illustrating to begin with analysing the application of the principle of proportionality in the field of broad Union policy measures. 2.1.4. Case Law on Review of Union Policy Measures and Proportionality – The Manifestly Appropriate Test It has been suggested by commentators that the ECJ generally has adopted a “manifestly inappropriate”18 test in relation to areas involving decision of economic or social policy where the Union enjoys a wide discretion, e.g. in the area of agricultural policy,19 transport policy,20 environmental policy,21 social policy22 and health protection.23 An illustrating case for the approach adopted of the ECJ in relation broad Union policy measures is the recent case Luxembourg v. Council and Parliament.24 In this case Luxembourg, supported by the Slovak Republic, requested the annulment of a directive on airport charges on the ground inter alia that it constituted an infringement of the principles of proportionality.25 In essence, the Directive applied to two categories of airports; i) airports that had an annual traffic over 5 million in passenger movements, ii) airports which had the highest passenger movements in the Member State, fell within the scope of the Directive.26 The scope of the Directive entailed that the Luxembourg-Findel airport, which had less than 5 million in passenger movements but was the airport with the highest passenger movements in Luxembourg, clearly fell within the scope of the Directive. Since proportionality of national measures restricting EU fundamental rights concerns a different normative context, this area will not be examined. 18  Emiliou, supra note 15, p. 197; Tridimas, supra note 12, p. 143. 19  Case C-310/04, Spain v. Commission and Council, [2006] ECR I-7285, paras. 98–99. 20  Joined cases C-248-9/95 SAM Schiffart and Stapf v. Germany [1997] ECR I-4475, para. 23. 21  Joined cases C-27 and C-122/00, Omega Air and other joined cases [2000] ECR I-2569. 22  Case C-84/94, United Kingdom v. Council, [1996] ECR I-795. 23  Case C-419/01, The Queen v. Secretary of State for Health ex. British American Tobacco Ltd [2002] ECR I-11453. 24  Judgment of 12 May 2011, Case C-176/09, Luxembourg v. Parliament and Council. 25  Directive 2009/12/EC of the European Parliament and of the Council of 11 March 2009 on airport charges (OJ 2009 L 70, p. 11), (hereafter ‘Directive’). 26  Article 1(2) of the Directive. 17 



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Luxembourg claimed in essence that Article 1(2) of the Directive constituted a breach of the principle of proportionality, having regard to the fact that the criterion defining the scope of the Directives was irrelevant to its objectives. In addition, Luxembourg argued that the administrative procedures and burdens and the formal procedures under the Directive were excessive and disproportionate to the size of the Luxembourg Findel airport.27 The Slovak Republic, who supported Luxembourg, further argued that the Union legislator had failed to justify, by objective criteria proportionate to the objective pursued by the Directive, the inclusion in its scope of airports located in Member States where no airport reaches the annual threshold of 5 million passenger movements and which have the highest number of such movements in the Member State concerned. To include such airports in the scope of the Directive on the sole ground that it was the largest airport in that Member State was not conducive to achieve the principal objective of the Directive, which was to limit abuse of dominant positions and consequently improve competition between airports.28 The ECJ held firstly that as regards the judicial review of compliance with the principle of proportionality, in the fields in which the European Union legislature has a broad legislative power, such as air transport matters the lawfulness of a measure adopted in that sphere could be affected only if the measure was manifestly inappropriate, having regard to the objective which the competent institutions were seeking to pursue.29 As regards whether the adoption of a framework requiring compliance with common principles for the establishment of airport charges at national level, was appropriate to achieve the objective of the Directive, the ECJ noted that where there was a risk that the airport managing bodies would find themselves in a privileged position in relation to airport users and accordingly there being a risk that they abused that position in the fixing of airport charges, such a common framework was likely, in principle, to prevent such a risk from becoming reality. That conclusion was also valid as regards airports located in Member States where no airport reached the annual threshold of 5 million passenger movements but the airport had the highest number of such movements in the Member State concerned.30 In relation to less restrictive measures, the ECJ merely noted that Luxembourg had not proposed any less restrictive measures which would ensure that the objective of the Directive was attained as effectively as a framework laying down common principles on airport charges.31 In relation to proportionality strictu sensu, the ECJ found that there was nothing to support a finding that the 27  28  29  30  31 

Case C-176/09, Luxembourg v. Parliament and Council, para. 56. Ibid., para. 57. Ibid., para. 62. Ibid., para. 66. Ibid., para. 67.

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charges under the system introduced by Directive for the airports concerned or for Member States, were manifestly disproportionate to the advantages which that system would bring. Firstly, with regard to the effects of the Directive on the functioning of the airports concerned, the ECJ held that the Directive only prescribed that Member States were to ensure that airport managing bodies instituted a procedure for regular consultation between them and airport user without stipulating the actual details of that consultation procedure. Thus, in principle, those airports were free to organise that procedure according to their size and financial and personnel resources. Secondly, as regards the independent supervisory authority, the Directive merely placed an obligation on Member States to establish such an authority and did not require them to provide for specific measures of organisation which imply that that authority must be of a certain size. Moreover it was possible to delegate the implementation of the Directive to other independent supervisory authorities in other Member States. Finally it did not appear that the costs which would be engendered by the implementation of the Directive would cause airlines to decide to abandon an airport such as that of Luxembourg-Findel. Thus, there was no breach of the principle of proportionality.32 The ECJ did not in fact analyse whether the common framework for airport charges was the most efficient or best measure to achieve the pursued objective but concluded simply that it was not a manifestly inappropriate measure.33 However, it is clear from the judgment that neither Luxembourg nor Slovak Republic had suggested any alternative measure which could to the same extent achieve the pursued objective. One thinkable criticism to the case is that it might not have been necessary to include main airports in the Directive which did not achieve over 5 million in passenger movements per year. However, it was clearly very difficult for the Union legislator to strike the right balance without interfering with the principle of discrimination and still achieving the objective of the Directive, which was to secure that airport management bodies did not abuse their privileged position.34 To some extent it might however have been possible to foresee a solution where the minimum requirement of 5 million passengers per year was reduced to also include airports of similar size as Luxembourg Findel.35 However, to second guess the appropriate solution is not the task of the ECJ and on the facts the decision appears justified. Having seen the test that the ECJ adopts in relation to broad union policy measures it is necessary to take a step back and ask ourselves why the ECJ adopts a “manifestly inappropriate” test in these cases? The root idea of the 32  33  34  35 

Ibid., paras. 69–72. Ibid., Opinion of Advocate General Mengozzi, para. 98. Ibid., Opinion of Advocate General Mengozzi, para. 51. Ibid., Opinion of Advocate General Mengozzi, paras. 101–102.



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“manifestly inappropriate” test is that the ECJ is concerned with legitimacy and relative competence.36 If the Treaty provides the Union legislature with a broad discretion, the ECJ is cautious to substitute their judgment for that of the Union legislator. This is particularly so if the area concerned involves expertise and the ECJ do not perceive that they have the necessary competence to resolve a complex economic or technical issue.37 These considerations of legitimacy are valid in the context of discretionary economic choices and discretionary social and political choices. Even if the “manifestly appropriate” test may be criticised for being too deferential in relation to the Union legislator, it is necessary to consider below whether this is the right test to adopt for the ECJ in relation to Union criminal law legislation.38 First, it is however appropriate to examine another strand of cases where the ECJ arguably adopts a different test in relation to proportionality. 2.1.5. Case Law on Financial Penalties, Administrative Sanctions and the Principle of Proportionality – The ‘Strictly Necessary’ Test In relation to administrative sanctions and financial penalties, it seems that the ECJ will enter into a more rigorous review, compared to the “manifestly appropriate” test discussed above in relation to the case-law on Union policy measures.39 An illustrating case for this strict review is the Wiedergeltingen case, which was concerned with penalties for breach of Union rules on milk quotas.40 In this case, the claimants, Wiedergeltingen, contested the validity of a provision in a Commission Regulation regarding penalties in cases of late communication of certain administrative information.41 The contested Union provision provided that before 15 May each year, a milk purchaser should forward to the competent authority of the Member State a summary of the statements drawn up for each producer or, where appropriate, the total quantity, and the average fat content of the milk and/or milk equivalent delivered to it by producers and the sum of the individual reference quantities and the average representative fat content of such producers’ production. If the time limit was not observed, a penalty equal to the amount of the levy for a

Craig, supra note 12, p. 668. Ibid., p. 669. 38  Section 2.1.6. 39  F. Jacobs, ‘Recent developments in the Principle of Proportionality of EC law’, in E. Ellis (ed.), The Principle of Proportionality in the Laws of Europe (Hart Publishing, 1999), p. 3. 40  Case C-356/97, Molkereigenossenschaft Wiedergeltingen, [2000] ECR I-5461. 41  Commission Regulation (EEC) No 536/93 of 9 March 1993 laying down detailed rules on the application of the additional levy on milk and milk products (OJ 1993 L 57, p. 12) (hereafter”Regulation”). 36  37 

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0.1% overrun on the quantities of milk and milk equivalent delivered to them by producers was imposed on the purchaser.42 The Wiedergeltingen dairy was a milk-processing undertaking and a purchaser within the meaning of the Directive, which operated in the form of a dairy cooperative; its members were the milk producers which supply it and they took the profits that the producers made. On 9 April 1997, the Hauptzollamt Lindau (Principal Customs Office, Lindau,’HZA’) reminded the Wiedergeltingen dairy that it had to communicate the summary of statements provided for in the Regulation no later than 14 May 1997. However, the summary of statements was not sent until 16 May 1997 and was received by the HZA on 20 May 1997, since 19 May was a public holiday. On 22 May 1997, the HZA imposed a penalty, pursuant to the second subparagraph of Article 3(2) of the Regulation, amounting to DEM 16 661.90.43 As regards the breach of the principle of proportionality, the Wiedergeltingen argued inter alia that that principle was infringed, given that the amount of the financial penalty was fixed independently of the length of the delay in communicating the summary of statements, given that the date of 15 May was quite arbitrary and given that it was calculated without regard to the dairy’s responsibility for the delay.44 The ECJ stated first, that the penalty was designed to ensure observance of the date of 15 May each year, the final date before which the summary of the statements of the quantities of milk delivered by each producer must be communicated by each dairy to the competent national authority. As regards the purpose of that deadline, it was clear that it constituted the first stage of a national administrative procedure which was ultimately designed to enable payment by the dairy to the competent body of the sums due by way of the additional levy on milk. More specifically, that deadline was intended to ensure that that procedure runs on time so that payment could be made before 1 September of each year, as provided for in Article 3(4) of the Regulation. The ECJ however held that although the 15 May deadline must be observed for the smooth operation of the scheme so as to ensure the punctual payment of those sums, it could not be concluded that observance of that deadline was absolutely indispensable to its smooth operation, since a slight delay, such as that with which the main proceedings were concerned, would not jeopardise payment of the additional levy on milk before 1 September.45 The ECJ also found that a slight delay in observing the deadline could not affect the punctual payment of the sums payable by way of the additional levy 42  43  44  45 

Article 3(2), first subparagraph. Case C-356/97, Molkereigenossenschaft Wiedergeltingen, paras. 10, 12 and 13. Ibid., para. 33. Ibid., paras. 37–38 and 41.



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on milk. In that regard, the ECJ pointed out that the financial sanction did not allow any account to be taken of the seriousness of the delay or of the impact which it may have on the attainment of the aim pursued by that legislation. Accordingly, the second subparagraph of Article 3(2) of Regulation was invalid as far as it imposed on the purchaser, in the event of failure to observe the timelimit, a financial penalty equal to the amount of the additional levy on milk due for a 0.1% overrun on the quantities of milk and milk equivalent delivered by producers, without taking into account the seriousness and length of the delay in observing the time-limit.46 The ECJ’s strict review in this case seems reasonable in view of the fact that there was no reasonable relationship between the penalty and the delay. Given that compliance with the time-limit was not essential, i.e. that it could not be demonstrated that any delay, regardless of its extent, produced specific effects likely to jeopardise the proper functioning of the Community scheme in question, an imposition of a fixed financial sanction, which did not vary due to the time of the delay was clearly a disproportionate measure.47 In addition, the ECJ’s strict review was only concerned with an implementing Commission Regulation and there was no issue of challenging the validity of the Union’s legislative scheme. In my point of view this case seems, notwithstanding that it concerned the validity of Union legislation, to be concerned more with individual rights and the interests of the applicants. Since the Wiedergeltingen dairy was very seriously affected by the penalty imposed by the national authority and there was no essential European interest at stake, it was not surprising that the ECJ reviewed the proportionality of the measure strictly. Further, strict review of Union policy measures will take place, in accordance with Bela-Muhle and Atlanta, if the applicant’s interest is severely affected by the Union measure and the Union is not able to show that the Union interest pursued takes precedence over the applicant’s interest.48 Two things are interesting with the Behla Muhle case. Firstly, the ECJ did not apply the “manifestly inappropriate” test. Secondly, the ECJ annulled the whole Council regulation on the compulsory purchase of skimmed-milk powder held by intervention agencies for use in feeding-stuffs, since it was considered disproportionate and contrary to the principle of discrimination. As is also shown in Behla Muhle, the principle of proportionality was considered in conjunction with the principle of discrimination to strike down Union measures. Thus if the Union legislation affects traders in a different manner, giving a competitive disadvantage to certain traders in an equal position, it Ibid., paras. 42–43 and 45. Ibid., Opinion of Advocate General Saggio, paras. 38–42. 48  Case C-114/76, Behla Muhle, [1977] ECR, 1211; Case C-240/78, Atlanta, [1979] ECR 2137; De Burca, supra note 11, pp. 122–123; Tridimas, supra note 12, pp. 153–154. 46  47 

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is likely that the ECJ will review proportionality strictly. This is unsurprising given that the principle of discrimination is one of the corner-stones of EU law. Consequently, in such cases, where the principle of equality is contravened by a Union measure, it seems that the ECJ instead adopt a “strictly necessary” test to examine whether the Union measures interfering with this principle goes beyond what is “absolutely necessary” to achieve the pursued objective.49 The considerations underlying review of discretionary policy choices is further absent in the area of administrative sanctions and the ECJ is therefore able to strike down administrative measures without undermining the whole legislative scheme.50 Thus, it seems that the ECJ will not apply the “manifestly inappropriate” test in cases where the individual interest is primary to the Union interest, where the Union measure amounts to a financial penalty and cases where the Union measure may be liable to contravene fundamental principles of Union law. In such cases, the ECJ will both review the accuracy of the facts and evaluate whether the Union in taking its decision did a correct evaluation of the facts and drew consequences which were justified on the basis of the available empirical evidence. 2.1.6. Concluding Remarks on Union Criminal Law and the Principle of Proportionality: Which Is the Correct Standard of Review of Proportionality in Relation to Union Criminal Law Measures? The first important point in relation to proportionality and review of Union criminal law measures is that there is no case-law on this specific issue. Neither is there any case-law which has determined similar issues. Therefore the law as it stands today is unclear. There are however arguments both in favour of a strict review of proportionality (Wiedergeltingen, and Behla Muhle) and a lenient review of proportionality (Luxembourg v. Parliament and Council and British American Tobacco). In favour of a lenient review is the fact that a directive on criminal law is an act of a general normative nature and that the ECJ, in its earlier case-law, has adopted a “manifestly inappropriate “test in relation to such acts. Nevertheless, criminal law legislation is not concerned with broad discretionary economical or political choices (as the CAP or Transport Policy) or complex technical or financial assessments. Criminal law concerns the choice of enforcement of Union legislation to achieve “effective implementation” of Union policies and is further strongly related to the protection of fundamental rights. Another argument in favour of a softer approach is however that the case-law on competences and 49  Case C-210/00, Käserei Champignon Hofmeister, [2002] ECR, I-6453. Käserei clearly shows the careful examination performed by the ECJ in relation to financial penalties and proportionality (paras. 59–68). 50  Craig, supra note 12, p. 681.



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proportionality seem to favour a deferential approach to the Union legislator when only the interests of Member States are concerned.51 The objection to this argument is that individuals are also affected seriously by a criminal law measure. Although it is recognised that the ECJ has applied the principle of proportionality leniently to the EU institutions and thereby limited the intensity of judicial review in relation to acts of normative nature, it is argued that the ECJ should involve itself in a strict review of proportionality and not only assess whether the Union legislator has complied with fundamental procedural requirements.52 Firstly, the powers in Article 83(2) are clearly circumscribed to the effect that the Union can only adopt minimum rules and only under the condition that criminal sanctions are essential for the effective implementation of Union policies. The Union has not been conferred with a broad power of appraisal in this area.53 Secondly, criminal penalties will severely restrict the freedoms of individuals and is liable to infringe their fundamental right to freedom to movement.54 It must however be admitted that it is doubtful whether ECJ’s case-law on administrative and financial sanctions (Wiedergeltingen, Behla Muhle) can inform the discussion on proportionality and criminal law. The main reason for this is that these cases have been concerned with specific administrative decisions based on implementing Union legislation and where the ECJ is not asked to rule on the validity of the whole policy scheme. There is however one thing which is striking with this case-law and this is the ECJ’s general concern of defending the interests of individuals and traders when the individual interest is more important or equally important than the Union interest. This is also relevant when assessing the level of judicial review of proportionality and criminal law. In this regard, it is argued that the individuals’ interest of freedom to movement has an equal high value as the Union interest of effectively implementing its policies. A strict application of the principle of proportionality is thus justified by the fact that criminal sanctions are inextricably linked to fundamental freedoms and substantial social costs.55 Finally, a substantive review of the merits of a legislative act is also justified if proportionality is to secure legal safeguards for the individuals affected by the criminal law legislation.56 How should the Union legislator and the ECJ assess proportionality in practice, based on the findings above? Firstly, the Union legislator as the primary 51  Case C-84/94, United Kingdom v. Council, [1996] ECR I-795; Case C-176/09, Luxembourg v. Parliament and Council. 52  Chalmers et al., supra note 9, p. 268; De Burca, supra note 11, pp. 116, 125. 53  Council Draft Conclusions, supra note 16, pp. 4–5. 54  Article 5 of the European Convention of Human Rights; De Burca, supra note 11, pp. 113, 147; Case C-5/88, Wachauf v. Bundesamt fuer Ernaehrung und Forstwirtschaft [1989] ECR 2609. 55  P. Craig, ‘Proportionality: Lessons from Community Law’, The European Advocate (Spring 1994), pp. 2, 4. 56  Harbo, supra note 11, 282.

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decision maker shall consider all the evidence on deterrence and then given the state of accurate and reliable evidence of deterrence, assess whether criminal sanctions are appropriate and necessary for the enforcement of the Union policy at stake.57 Thereafter, the ECJ shall review judicially the procedures through which the choice was made and analyse whether the Union legislator took into account reliable, consistent and sufficient evidence to make any conclusions on suitability and necessity of criminal sanctions. Finally, the ECJ must scrutinize whether the Union legislator’s choice on criminal sanctions was reasonably supported by the facts which require the balancing of competing evidence, i.e. based on the empirical evidence available, was it necessary to adopt criminal sanctions to ensure the effective implementation of the affected Union policy?58 This conception of proportionality entails that the merits of the legislative act are reviewed twice, once by the legislator and once by the court.59 The following analysis will endeavour to make assertions regarding the likely effectiveness of specific sanctions based on existing empirical knowledge and legal and economical doctrine.60 It is acknowledged that this analysis requires empirical and normative assessments of the efficiency of different sanctions. The justification for the normative approach to the issue of sanctions is that it makes little sense to legally analyse the requirement of “essential” if one avoids the policy discussion on the effectiveness of different sanctions. As will be seen below, the examined field of law is EU competition law and the reader may ask why this field of law has been selected as a case study. The reason for this selection is twofold. First, it has been suggested by commentators that EU anti-trust enforcement needs criminal sanctions.61 Secondly, the field of competition law is a good illustration to demonstrate the very complex criminological issues which arises when it comes to determine whether imprisonment is an efficient sanction in regulatory criminal law.

Emiliou, supra note 15, pp. 175–176; Harbo, supra note 11, p. 247. Case C-12/03 P, Tetra Laval, [2005] ECR I-987, para. 39. 59  Harbo, supra note 11, pp. 283–284. 60  Asp, supra note 13, p. 215; Council Draft Conclusions, supra note 16, p. 5. 61  W.P.J. Wils, ‘Is Criminalisation of EU Competition Law the Answer’, paper presented at the Amsterdam Centre for Law and Economics (ACLE) Conference Remedies and Sanctions in European Competition Policy (Amsterdam, 17–18 February 2005), World Competition: Law and Economics Review, Vol. 28, No. 2, June 2005 and K.J. Cseres, M.P. Schinkel and F.O.W. Vogelaar (eds.), Remedies and Sanctions in Competition Policy: Economic and Legal Implications of the Tendency to Criminalize Antitrust Enforcement in the EU Member States (Edward Elgar Publishing, 2006); P. Whelan, ‘A Principled Argument for Personal Criminal Sanctions as Punishment under EC Cartel Law’ (2007) 4(1) Competition Law Review 7. 57  58 



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2.2. Concrete Application of the ‘Essentiality’ Test In Relation to Criminal Sanctions in the Field of Competition Law 2.2.1. Are Criminal Sanctions Suitable for the Effective Implementation of the Union Competition Policies? There exist in my opinion, essentially four main arguments as to why criminal sanctions are suitable for the effective implementation of the Union competition policies.62 Firstly, individual criminal punishment arguably ensures efficient cartel deterrence (the deterrence argument).63 Secondly, the problem of firms being unable to pay optimal fines,64 and the consequent sub-optimal level of deterrence, is rectified through the use of imprisonment (the optimal fine argument).65 Thirdly, criminalisation sends a moral message to the business community that violations of the competition rules are not acceptable (the stigmatization argument).66 Finally, it is alleged that a criminalisation entails an increased efficiency in the system of leniency since individual liability may imply an additional factor of instability in the cartel cooperation and thus give the individual an incentive to cooperate with the investigating authorities (the leniency argument).67 In order to analyse the benefits of different sanctions in the field of competition law, it is necessary to have an understanding of why individuals engage in cartel collusion and why a specific sanction can act as a disincentive for individuals to engage in cartel collusion. A theoretical understanding of the benefits of different sanctions in the competition law field thus needs to be based on criminological theories.68 The arguments in favour of criminal sanctions consequently reflect a particular understanding of why individuals engage in cartel collusion and a specific theory regarding the factors that deters individuals from engaging in cartel behaviour. In relation to the deterrence argument referred to above, it seems that this argument is mainly based on empirical studies from the US regarding the deterrent 62  F.W. Von Papp, ‘What if All Bid Riggers Went to Prison and Nobody Noticed? Criminal Antitrust Law Enforcement in Germany’, in C. Beaton-Wells and A. Ezrachi, eds., Criminalising Cartels – Critical Studies of an International Regulatory Movement (Hart, 2011), p. 173. 63  J.D. Cooke and P. Massey, ‘Competition Offences in Ireland: The Regime and Its Results’, in C. Beaton-Wells and A. Ezrachi, eds., Criminalising Cartels – Critical Studies of an International Regulatory Movement (Hart, 2011), p. 111. 64  Wils, supra note 61, pp. 78–81; Whelan, supra note 61, pp. 25–26. 65  G. Spagnolo, ‘Criminalisation of cartels and their internal organisation’, in K.J. Cseres, M.P. Schinkel, F.O.W. Vogelaar (eds.), Remedies and Sanctions in Competition Policy: Economic and Legal Implications of the Tendency to Criminalize Antitrust Enforcement in the EU Member States (Edward Elgar Publishing, 2006), 135. 66  Swedish Government Memorandum: “En ny konkurrenslag” (SOU 2006: 99), p. 539; Wils, supra note 61, p. 84; Whelan, supra note 61, p. 27; Von Papp, supra note 62, pp. 159–160, 180–181. 67  Spagnolo, supra note 65, 135. 68  Swedish Government Memorandum, supra note 66, pp. 544–549.

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effects of criminal sanctions in the field of competition law.69 The reliance on these studies is, however, questioned by several commentators who inter alia argue that punishment in itself has a limited deterrent effect or alternatively that other factors are more important than punishment to deter individuals from engaging in cartel behaviours.70 It is also contested whether the rational actor model, underlying the deterrence argument, can provide a satisfactory explanation as to why individuals engage in illegal cartel behaviour.71 According to the rational actor model, the economically rational criminal should, not commit a cartel offence if he or she perceives that: i) the costs associated with committing the cartel offence plus the additional costs that he or she will pay if he or she is caught and convicted, adjusted by the probability of that happening exceed, ii) the value of the benefit that is to be derived if the cartel offence is successful, adjusted by the probability of success.72 In this respect, it is assumed that the factors in the rational actor model, i.e. the likely probability of being caught and the likelihood of being convicted, are subjective factors.73 A core criticism to the rational actor model is that it is argued that a broader range of factors motivates people to comply with the law and not only the incentives suggested by the deterrence model.74 In relation to the deterrence objective, it is contended that perception of probability of detection and enforcement is more important than the severity of the sanction.75 The objective level of punishment Wils, supra note 61, pp. 83–84; Whelan, supra note 61, p. 34. A.P. Reindl, ‘How Strong is the Case for Criminal Sanctions in Cartel Cases’, in K.J. Cseres, M.P. Schinkel, F.O.W. Vogelaar, (eds.), Remedies and Sanctions in Competition Policy: Economic and Legal Implications of the Tendency to Criminalize Antitrust Enforcement in the EU Member States (Edward Elgar Publishing, 2006) p. 116; M.E Stucke, ‘Am I a Price Fixer? A Behavioural Economics Analysis of Cartels’, in C. Beaton-Wells and A. Ezrachi (eds.), Criminalising Cartels – Critical Studies of an International Regulatory Movement (Hart, 2011), pp. 267–269; C. Parker, ‘Criminal Cartel Sanctions and Compliance: The Gap between Rhetoric and Reality’, in C. Beaton-Wells and A. Ezrachi (eds.), Criminalising Cartels – Critical Studies of an International Regulatory Movement (Hart, 2011), pp. 242–250. Parker concludes that the available empirical evidence on the deterrence of imprisonment is inconclusive and insufficient to give any real indicators of deterrence. 71  Parker, supra note 70, pp. 249–250; Stucke, supra note 70, pp. 269–280, 287–288. 72  M. Wise, ‘The System of Sanctions and Enforcement Co-operation in US Antitrust Law’, in G. Dannecker and O. Jansen (eds.), Competition Law Sanctioning in the European Union (Kluwer Law International, 2004), p. 197; B. Rodger, ‘Sanctions and Deterrence in UK Competition Law’, in G. Dannecker and O. Jansen, (eds.), Competition Law Sanctioning in the European Union (Kluwer Law International, 2004), p. 118; Parker, supra note 70, p. 241 73  A. Von Hirsch, A. Ashworth and J. Roberts (eds.), Principled Sentencing: Readings on Theory and Policy (Hart, 2009), p. 40; Parker, supra note 70, p. 249. 74  The rational actor model has been strongly advocated by R. Posner: ‘An economic theory of Criminal Law’, (1985) 85 Columbia Law Review, p. 1193; and reprinted in A. Von Hirsch, A. Ashworth and J. Roberts (eds.), Principled Sentencing: Readings on Theory and Policy (Hart, 2009), The rational actor model is inter alia criticised by D.M. Kahan: ‘Between Economics and Sociology: the New Path to Deterrence’, Michigan Law Review, 95, 1997a, pp. 2482–2486. 75  A. Von Hirsch, A.E. Bottoms, E. Burney and P.O. Wikstrom:’ Deterrent Sentencing as a Crime Prevention Strategy’, in A. Von Hirsch, A.J. Ashworth and J. Roberts (eds.), Principled Sentencing: Readings on Theory and Policy (Hart, 2009), pp. 44–45; D. Baker, ‘Punishment for 69  70 



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does not have any effect if potential offenders are not aware of the frequency and severity of the sanction.76 In addition, individuals frequently comply with the law for normative reasons, because people perceive that they have a moral obligation to comply, and because they see their peers and colleague obey the law.77 These legitimacy factors are argued to matter more to compliance than instrumental factors such as the risk for sanctions.78 Because of moral influences people may act ‘irrationally’. There is a limited knowledge on the sociology of a cartel and what motivates managers of corporations to comply with antitrust laws and refrain from participating in unlawful cartel agreements.79 An evaluation of the different models of explaining why and under what conditions individuals are deterred from engaging in cartel behaviours entails the assertion that a sociological analysis is also needed to explain the conditions that actually deter individuals from engaging in anti-competitive behaviour.80 It is thus not feasible to justify the need for criminal sanctions solely on the reliance of the rational actor model.81 The claim is that it is not unreasonable that managers, in some cases, decide not to engage in cartel behaviour even if, from a cost-benefit analysis, it would be rational. Even if engaging in cartel behaviour could increase the profit of the firm (and therefore the career possibilities for the manager) and the perceived probability of detection is low, the manager may still decide not to engage in the cartel behaviour due to a moral conviction that engaging in a cartel is a condemnable behaviour.82 Likewise, a manager may also be in a financially or mentally difficult situation where he is susceptible to engage in cartel collusion since this can raise his career prospects, Cartel Participants in the United States: A Special Model?’, in C. Beaton-Wells and A. Ezrachi (eds.), Criminalising Cartels – Critical Studies of an International Regulatory Movement (Hart, 2011), p. 35; Parker, supra note 70, p. 250. 76  Von Papp, supra note 62, p. 170. 77  E.H. Sutherland, Principles of Criminology, 3rd ed. (J.B. Lippincott, 1939); S.S. Simpson and C.S. Koper, ‘Deterring Corporate Crime’, (1992) 30 (3) Criminology, p. 347 and p. 367; I. Ayres and J. Braithwaite, Responding Regulation – Transcending the Deregulation Debate (OUP, 1992), pp. 22–23; D.M. Kahan, ‘Social influence, Social Meaning and Deterrence’, Virginia Law Review, Vol. 83, No. 3, 1997, p. 354; S.S. Simpson, Corporate Crime, Law and Social Control, Volume 5 (Cambridge University Press, 2002), p. 95; Parker, supra note 70, pp. 257–258. 78  Wise, supra note 72, p. 198; Von Hirsch et al., supra note 75, pp. 44–46. 79  R.A. Kagan and J. Scholz, ‘The Criminology of the Corporation: and Regulatory Enforcement Strategies’, in Keith Hawkins and John Thomas (eds.), Enforcing Regulation (Kluwer Nijhoff Publishing, 1984), p. 67; and Parker, supra note 70, pp. 259–260 80  Ayres and Braithwaite, supra note 77, pp. 24, 51. 81  C. Parker, ‘The “Compliance” Trap: The Moral Message in Responsive Regulatory Enforcement’, 2006 (40) (3), Law and Society Review 591, pp. 607–608. 82  Von Hirsch and others, supra note 75, pp. 45–46; J.W. Coleman, ‘Motivation and Opportunity: Understanding the Causes of White-Collar Crimes’, in G. Geis, R.F. Meier and L.M. Salinger (eds.), White-Collar Crime. Classic and Contemporary Views, 3rd edition (New York, Free Press, 1994), p. 292; Ayres and Braithwaite, supra note 76, p. 24; W.P.J. Wils, The Optimal Enforcement of EC Antitrust Law (Kluwer Law International, 2002), pp. 216–217.

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despite that the perceived probability of detection is very high and he perceives a serious risk of being convicted for the unlawful behaviour.83 It is also argued that social pressure (and the threat of informal sanctions), market conditions and criminogenic company cultures are relevant factors which affects the individual’s decision to engage in a cartel.84 From a general compliance perspective, the design of the competition law sanctioning system needs to take into account the fact that individuals in some instances abide by the law by normative and moral reasons and in some instances comply with the law for rational economic reasons.85 Therefore, as suggested above, a convergence between the rational actor model and sociological theories is advocated. It is however accepted, in line with the Tit For Tat strategy, that the regulator should have at its disposal a large “stick” which can deter people who decide not to comply with the law.86 If persuasion and cooperation fails, the regulator needs to move up the enforcement pyramid and enforce its regulation with strongly punitive sanctions.87 Despite the recognised problems of estimating the deterrence of criminal sanctions, it however seems likely that criminal sanctions have a deterrent effect, at least in relation to average compliant individuals who pursues corporate gain and are free to make rational decisions which are based on reliable information regarding detection levels and conviction levels.88 This conclusion is however based on the assumption that individuals perceive at least a minimum risk that the unlawful behaviour is detected and that they perceive at least a minimum risk of being convicted.89 This conclusion is supported by the majority of evidence provided by both criminological research and legal literature. I do therefore tentatively consider that criminal sanctions is suitable to achieve “effective implementation” of Union competition policies, even if it does not seem feasible to quantify the deterrent effect of criminal sanctions.90 83  D. Weisburd, E. Waring and E. Chayet, ‘Specific Deterrence in a Sample of Offenders Convicted of White-Collar Crimes’, Criminology, 33, Issue 4: 1995, p. 587; Parker, supra note 70, pp. 255–256. 84  Parker, supra note 70, pp. 254–255. 85  Ayres and Braithwaite, supra note 77, p. 51. 86  Ibid., pp. 40–41. 87  Ibid., p. 53. 88  Parker, supra note 70, p. 256 and p. 260; A. Von Hirsch, A.E. Bottoms, E. Burney and P.O. Wikström, ‘Deterrent Sentencing as a Crime Prevention Strategy’, in A. Von Hirsch, A. Ashworth and J. Robert (eds.), Principled Sentencing: Readings on Theory and Policy (Hart, 2009), p. 60; M.J. Frese, ‘The Negative Interplay between National Custodial Sanctions and Leniency’, in K.J. Cseres, M.P. Schinkel, F.O.W. Vogelaar (eds.), Remedies and Sanctions in Competition Policy: Economic and Legal Implications of the Tendency to Criminalize Antitrust Enforcement in the EU Member States (Edward Elgar Publishing, 2006), p. 208; Reindl, supra note 70, p. 117; Wils, supra note 82, p. 195; J. Sarnecki, Introduktion till kriminologi (Studentlitteratur AB 2003), p. 323. 89  Von Hirsch and others, supra note 75, p. 44; Ayres and Braithwaite, supra note 77, p. 52. 90  Wils, supra note 61, pp. 83–84; Whelan, supra note 61, p. 33; C. Beaton-Wells, ‘Cartel Criminalisation and the Australian Competition and Consumer Commission: Opportunities and



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2.2.2. Are there Less Restrictive Sanctions which Are Equally Efficient as Criminal Sanctions to Achieve the Objective of an Effective Implementation Union Competition Policy? Although it is hard to quantify how efficient criminal sanctions are in the enforcement of Union competition rules, it is necessary to consider whether there are less burdensome sanctions that are equally efficient as criminal sanctions.91 The core reason for this approach is that there seem to exist a common understanding within the EU legal doctrine, that criminalisation should be used as ultima ratio.92 I will first briefly discuss the problems with the existing sanctioning system and the potential alternatives for the Union legislator. Thereafter, I will compare criminal sanctions with the most important and severe individual penalties in the competition law field, i.e., personal fines and trading prohibitions, which may act as deterrents for individuals to engage in cartel behaviour. What sanctions are available for the Union legislator within the existing sanctioning systems, apart from criminal sanctions, to enforce Union competition rules? On the basis of Article 103 TFEU and Articles 23 and 24 of Regulation 1/2003, the Commission is entitled to impose fines and administrative sanctions on undertakings. According to Article 5 of the same Regulation, national authorities do also have power to apply Articles 101 and 102 TFEU and impose fines, periodic penalty payments or “any other penalty” provided for in their national law. Pursuant to Article 6 of the same Regulation, national courts also have the power to apply Articles 101 and Article 102 TFEU. This is in fact implies that Member States are free to impose any sanction they consider necessary for enforcement of Union competition rules and national competition rules. Consequently, Member States are in principle at liberty to impose fines and criminal penalties on individuals for infringements of Union competition rules.93 In relation to fines it further follows from Article 23(2) of Regulation 1/2003 that the Commission may impose fines on undertakings if they either intentionally or negligently infringe Article 101 the TFEU. For the undertaking or association of undertakings participating in the infringement, the fine shall not exceed 10 % of its total turnover in the preceding business year. Challenges’, in C. Beaton-Wells and A. Ezrachi (eds.), Criminalising Cartels – Critical Studies of an International Regulatory Movement (Hart, 2011), p. 198. 91  Chalmers et al., supra note 9, p. 617; R. Sicurella, Diritto penale e competenze dell’Unione Europea. Linee guida di un sistema integrato di tutela dei beni giuridici sovrannazionali e dei beni giuridici di interesse comune (Giuffre Editore, 2005), pp. 350–353. 92  Council Draft Conclusions, supra note 16, p. 4; B. Schunemann, ‘Alternative-project for a European Criminal Law and Procedure’, Criminal Law Forum, 18(2), 2007, pp. 229, 234; Sicurella, supra note 91, pp. 351–353. 93  Wils, supra note 61, pp. 17–19.

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It is widely recognised that the fines necessary to deter firms from engaging in anti-competitive behaviour, is not feasible to impose.94 If one assumes that firms are rational, they will make a cost-benefit analysis of the potential profits from engaging in anti-competitive behaviour weighted against the risk of detection and punishment. The amount of the fines necessary to deter firms from engaging in anti-competitive behaviour would simply exceed the ceiling in Article 23 of Regulation 1/2003.95 In addition, in most cases, firms would be unable to pay an optimal fine, since the profits would in most cases already have been disposed of.96 The deterrent impact of an optimal fine putting an undertaking out of business may be considerable but imposes a very big social cost: the shareholders will lose their investment, the debts will not be paid, employees will be made redundant and products will be taken out of the market so the customer might lose even more. Even though firms can be sanctioned for breaches of the Union competition rules, there is no sanction under the current Union sanctioning regime which can be directed against individuals.97 Is this a problem? There are basically two reasons why personal sanctions are needed for the effective implementation of Union competition rules. Firstly, cartel behaviour cannot simply exist without human actions and it is therefore necessary to deter individuals by threaten them directly with sanctions if they violate the competition rules. Secondly, individuals have, often, other incentives than the firm since the individual’s decision to engage in cartel collusion with competing undertaking may be based on prospects of personal monetary gain, status, and better career opportunities, which do not necessarily coincides with the firm’s interest (the principal-agent problem).98 It is also unclear whether firms are able or induced to impose sanctions on managers which engage in anti-competitive behaviour.99 Since firms are liable for acts of their employees there may not exist an incentive to discover illegal behaviour from the employees. The current sanctioning system, which relies heavily on fines and periodic penalty payments, thus appears to be inefficient.100 On the whole, it therefore seems rational that there should be some kind of formal sanction against individuals which can act as a deterrent when managers are contemplating to

Rodger, supra note 72, pp. 123–124;Wils, supra note 82, pp. 202–206. Whelan, supra note 61, pp. 25–27. 96  Swedish Government Memorandum, supra note 66, pp. 536–537; Whelan, supra note 61, p. 30. 97  Frese, supra note 88, p. 197. 98  Wils, supra note 82,p. 193; Baker, supra note 75, p. 36; Parker, supra note 70, pp. 254–255. 99  Wils, supra note 82, pp. 208–209; Whelan, supra note 61, p. 21. 100  Frese, supra note 88, p. 198. See also the White Paper from the UK, ‘Productivity and Enterprise; A World Class Competition Regime’ cm 5233, box 7.3 at p. 40. 94  95 



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engage in anti-competitive behaviours.101 I will therefore in the rest of the analysis assume that a personal sanction is required and that sanctions against firms, in themselves, cannot act as a sufficient deterrent for firms and individuals to engage in anti-competitive behaviour.102 Nevertheless, the question remains if it is really necessary to impose criminal sanctions103 or whether it is sufficient and more appropriate to use other less repressive sanctions against individuals. 2.2.3. Is a Personal Fine an Equally Efficient Measure as Criminal Sanctions to Effectively Implement Union Competition Policy? The dilemma with financial sanctions against individuals is that there is a potential risk that the firm will reimburse an individual which has been involved in the cartel.104 Prison sentences on the other hand cannot be passed on to the firm.105 It is clear that there are situations where firms reimburse their agents for involving in cartel practices. In this respect, one has to make a distinction between two typical situations where individuals engage in cartel cooperation. In the first case, individuals engage in cartel cooperation with the knowledge or support from the management. In this case, managers are likely to be compensated to a certain extent, by the firm. Accordingly, it is unclear in this situation whether financial sanctions against individuals will act as a deterrent. In the second case, individuals engage, in illegal cooperation with other undertakings without the knowledge of the management and/or contrary to the management’s instructions. In this case, it is contrary unlikely that the firm will reimburse the manager, particularly since the managers in most cases have acted contrary to the firm’s internal rules.106 Therefore, the threat of a financial sanction must reasonably be considered as a deterrent for the individual, which are contemplating to engage in a cartel. The argument against imposing financial sanctions in this situation is that firms, if they are serious, normally have internal sanctioning systems against individuals engaged in cartel behaviour. A fine imposed by the official authority against individuals would thus provide fewer incentives to firms to police individuals engaged in serious cartel practices.107 In addition, the fines necessary 101  Nils Wahl, ‘Optimal sanktioner inom Svensk Konkurrensrätt’, Konkurrensverkets uppdragsforskning, 2006:3, available at , p. 13. 102  Frese, supra note 88, p. 199. 103  Council Draft Conclusions, supra note 16, p. 5. 104  Whelan, supra note 61, p. 26; Von Papp, supra note 62, p. 174. 105  P. Massey, ‘Criminalization and Leniency: Will the Combination Favourably Affect Cartel Stability?’, in K.J. Cseres, M.P. Schinkel, F.O.W. Vogelaar (eds.), Remedies and Sanctions in Competition Policy: Economic and Legal Implications of the Tendency to Criminalize Antitrust Enforcement in the EU Member States (Edward Elgar Publishing, 2006), p. 182. 106  Frese, supra note 88, p. 200. 107  Swedish Government Memorandum, supra note 66, p. 575.

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for effective deterrence may be so high that the individual is unable to pay it.108 An optimal deterrent fine may also be disproportionate in relation to the gravity of the offense. Thus, it is unclear whether financial sanctions against individuals are an equally efficient remedy as criminal sanctions to enforce Union competition rules.109 2.2.4. Are Trading Prohibition an Equally Efficient Measure as Criminal Sanctions to Effectively Implement Union Competition Policy? Generally, rules on trading prohibition imply that a person subject to trading prohibition cannot pursue business for a certain time or hold a formal or informal management functions in a legal person.110 This normally applies to the board of director and the managing director. The problem with trading prohibition is essentially similar to the dilemma identified above in relation to personal fines, i.e. the reimbursement problem. Consequently, there will always be managers which take the opportunity to retire with a good financial compensation from the company.111 Nevertheless, if the individual has not acted with the knowledge of the firm and the firm has been harmed, compensation is unlikely to take place.112 To a certain extent, trading prohibitions have similarities to imprisonment in that certain disadvantages for the individual cannot be reimbursed by the firm. If a person is deprived of his opportunity to engage in business, the firm is to a certain extent unable to reimburse the social and psychological harm that may entail due to a trading prohibition, particularly for managers which are not near retirement. It thus seems that a trading prohibition will have a strong deterrent effect. Although trading prohibition has a stronger deterrent effect than fines against firms or individuals, it is however questionable whether trading prohibition will be an equally efficient sanction as imprisonment. The reasons for this are that trading prohibitions normally cannot be imposed on middle managers and only have a marginal deterrent effect on managers which are close to retirement.113

Wils, supra note 82, pp. 219–220. Reindl, supra note 70, p. 126. 110  Rodger, supra note 72, pp. 130–131. 111  Wils, supra note 61, p. 86. 112  Frese, supra note 88, p. 200 113  Article 1 and 4 of the Swedish Act on Trading prohibition of 1986 (Sw: Lag (1986:436) om näringsförbud); Wils, supra note 82, p. 222. 108  109 



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2.2.5. Concluding Remarks regarding Alternative Sanctions for the Effective Implementation of Union Competition Policies If we try to sum up the discussion it seems that, a majority of scholars suggests that imprisonment, contrary to trading prohibitions and personal fines, will alone deter individuals from engaging in anti-competitive behaviour.114 The main reason for this is that individuals cannot pass over a prison term to the firm.115 Whereas individuals would rather choose a fine or trading prohibition before a prison term, imprisonment is argued to be the most efficient remedy in the enforcement of competition law.116 There may however be a middle way which overcomes the efficiency problem identified above in relation to personal fines and trading prohibitions. If one would simultaneously employ financial sanctions against individuals and trading prohibitions against individuals, it would be possible to deter both middle managers and people in a leading position in the firm.117 The only individuals who would not be deterred would be directors which were close to retirement since it is assumed that firms would compensate such managers. In this sense, we cannot however be certain that those individuals perceive that firms will compensate them. Thus, there seems to be an argument to state that a combination of financial sanctions and trading prohibitions may be equally efficient as criminal sanctions. In my opinion, it would also be appropriate from a criminal policy perspective if the Union first enacted less restrictive harmonised sanctions against individuals as disqualification orders and personal fines. If these measures would prove to be unsuccessful and only entail a marginal deterrent effect it would then be suitable to consider criminal sanctions. Given the uncertainty of the deterrent effect of criminal sanctions and given the fact that the Union legislator has no experience from the practical implications of individual sanctions, it seems that it would be premature to adopt criminal sanctions. As stated above, it seems that the available empirical evidence on the deterrence of imprisonment is inconclusive and insufficient to give any real indicators of deterrence. Consistent with the Tit for Tat strategy the Union legislator should therefore, prior to adopting criminal sanctions, harmonise individual sanctions within the Member States to achieve effective implementation of Union competition policy.118 If we adopt the essentiality test in terms of burden of proof it is therefore questionable whether the Union legislator would be able to prove that criminal sanctions Frese, supra note 88, p. 200. Whelan, supra note 61, p. 26. 116  OECD Competition Committee Working Party no 3 Discussion Paper,’ Sanctions against individuals, Including Criminal Sanctions in Prosecuting Cartels’ (August 2003). 117  Frese, supra note 88, 209. 118  Regarding the Tit for Strategy; see Ayres and Braithwaite, supra note 77, pp. 41, 53. 114  115 

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are more efficient than other less restrictive measures to achieve the effective implementation of Union competition policies. In conclusion, it thus seems that criminal sanctions, based on the lack of sufficient evidence on deterrence and based on the principle that criminal sanctions should be used as ultima ratio, are not “essential” for the effective implementation of Union Competition Rules.

3. Procedural Requirements for Enacting Criminal Law Legislation under Article 83(2) TFEU 3.1. What is the Meaning of Harmonisation Measures in Article 83(2) TFEU? As can be seen from the wording of Article 83(2) TFEU the criterion of “areas already subject to harmonisation” is hardly a very precise criterion (harmonisation test). There is no official preparative works from the EU institutions which can shed light on the meaning of this requirement.119 The most crucial question is what degree of harmonisation is referred to in Article 83(2) TFEU. Is it concerned with partial harmonisation, minimum harmonisation or total harmonisation?120 A literal interpretation seem to suggest that “harmonisation” implies that Union rules, primary or secondary law, must exist in the area concerned.121 Let us consider the impact of harmonisation in the field of competition policy. In this regard, it has been stated that “after agriculture, competition policy is perhaps the most highly developed of the Community’s common policies, with the greatest impact on undertakings situated both inside and outside the common market.”122 It is thus no understatement to say that competition policy is one of the most fully integrated areas of Union law. Broadly speaking, the material rules on what constitutes anti-competitive behaviour are similar in all Member States due to the high degree of harmonisation in this policy field. If you consider the text of Article 83(2), the wording nevertheless seems to suggest that harmonisation must have taken place by means of a directive or regulation.123 The wording, “harmonisation measures in question”, of the Treaty seemingly refers to an underlying specific harmonisation measure which envisages that Union, prior to adopting criminal sanctions, has adopted harmonised rules which set forth the rules whose infringement should be subject to criminal

Report from Working Group X, CONV 426/02, 2 December 2002, pp. 9–10. J. Steiner, C. Twigg-Flesner and L. Woods, EU Law, 9th Edition (OUP, 2006), pp. 326–334. 121  M. Fletcher, in House of Lords European Union Committee, The Treaty of Lisbon: an Impact Assessment Volume 2: Evidence, 10th Report of Session 2007–08, HL paper 62-I, E 150;P. Craig, The Lisbon Treaty – Law, Politics and Treaty Reform (OUP, 2010), p. 365. 122  Steiner et al., supra note 120, p. 571. 123  Craig, supra note 121, p. 365. 119  120 



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sanctions.124 Since directives or regulations are the main legislative instruments it seems likely that “harmonisation measures” refers to such an instrument. This conclusion is further supported by the fact that the harmonisation measure should have been adopted through the “ordinary” or “special” legislative procedure. Because of this, it seems unlikely that Article 83(2) refers to harmonisation which has taken place through Treaty amendments. The harmonisation which have been provided for by the Treaty by means of Article 101 and Article 102 TFEU have not taken place through the legislative procedures provided for by the Treaty, i.e. the ordinary or special legislative procedure. Harmonisation within the meaning of Article 83(2) TFEU consequently refers to harmonisation which has taken place through secondary law. But is the degree of harmonisation provided for in EU competition law sufficient for criminal law measures? 3.2. How Much Harmonisation Is Needed for the Adoption of Criminal Law Measures? Is there a Need for Two Legislative Measures to Enact Criminal Penalties under Article 83(2) TFEU? 125 In the field of EU competition law, harmonisation has not only taken place through Treaty Amendments but also through secondary legislation, particularly based on the sectoral provision in Article 103 TFEU. In this regard it is clear that the Union has adopted several important regulations in this policy field; inter alia Regulation 1/2003, on the basis of Article 103 TFEU. However, is the harmonisation provided for by Regulation 1/2003 sufficient as a basis for criminal sanctions? The question is consequently whether the Union legislature simply can refer to the previous harmonisation measures, e.g. Regulation 1/2003, when imposing criminal sanctions or if there is there a need to adopt a previous harmonisation measure which harmonise civil liability for infringements of the Union competition rules? Does Article 83(2) TFEU require, that two separate measures are adopted; one providing for the underlying harmonisation of administrative sanctions and one providing for criminal sanctions? A neat solution would be to argue that there exist several harmonisation measures in the field of competition law, e.g. Regulation 1/2003, which have been adopted on the basis of Article 103 TFEU and that a directive criminalising infringements of the EU competition rules can be adopted simply through the consultation procedure provided for in Article 103 TFEU. Such a directive would simply refer to the underlying harmonisation measure and the legal basis which were used for its adoption, i.e. Article 103 TFEU, which in accordance with Article

124  125 

S. Peers, EU Justice and Home Affairs Law (OUP, 2006), p. 776. Ibid., pp. 775–776.

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83(2) provides for a special legislative procedure.126 I however consider that this solution is inappropriate both from a policy and legal perspective. In the absence of any clear evidence in the preparatory work of the Union legislator’s intention regarding this provision, I will propose that this provision is interpreted in the light of the democratic principle. First, since Article 103 TFEU only prescribes for the consultation of the European Parliament the mentioned solution does not provide sufficient democratic legitimation to the criminal law measure adopted on the basis of Article 83(2) TFEU would need to be based on the consultation procedure.127 Secondly, as a matter of criminal policy, it seems odd to adopt criminal sanctions in the field of competition law prior to harmonisation of individual sanctions in the same field. In this regard, it is argued that the Union legislator firstly should adopt individual non-penal sanctions to monitor whether they can achieve effective implementation of Union competition rules prior to adopting criminal sanctions.128 If non-penal sanctions would prove to achieve effective implementation of Union competition law there would be no need to resort to criminal sanctions. This would be consistent with the principle that criminal law should be used as an ultima ratio and the Tit for Tat strategy. Thirdly, it is asserted that Regulation 1/2003 is not a general harmonisation measure in relation to substantive EU competition law. Regulation 1/2003 is principally concerned with procedural issues and the powers of the Commission to enforce EU Competition law and the powers of the national authorities and national courts to implement Union competition policy. This Regulation provides for no substantive harmonisation of rules on individual liability or harmonisation of personal sanctions in cases of breaches of the EU competition rules. The suggestion is therefore to adopt two different directives in order to adopt criminal law.129 It is suggested that the first harmonisation measure concerned with harmonising the enforcement regimes in the Member States in relation to individual liability for competition law infringements, would be based on Article 114 TFEU. The reason for choosing this legal basis is that it provides for sufficient democratic legitimacy and also constitutes a broad power for the Union to enact measures for the establishment and functioning of the internal market. The present author’s proposal would also be consistent with the solution 126  I will in this regard assume that the legislative procedure under Article 103 TFEU constitutes a special legislative procedure within the meaning of Article 289 (2) TFEU. See however Craig, supra note 121, pp. 256–260. 127  ‘A Manifesto On European Criminal Policy’, European Criminal Policy Initiative, , last accessed at 4 May 2011 (“Manifesto”); Craig, supra note 122, p. 255; CONV 424/02, Final Report of Working Group IX on Simplification, Brussels, 29 November 2002, p. 2. 128  Working Group X, supra note 119, p. 10. 129  Peers, supra note 124, p. 776.



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suggested by the Commission in its proposal for sanction in the financial services sector whereas the Commission has argued that rules on individual liability for breaches of EU financial regulations can be based on Article 114 TFEU.130 The intention of the first directive would be to establish a Union harmonised regime of individual sanctions against individuals, including personal fines and trading prohibition, to efficiently enforce Union competition law. If it subsequently were proven that harmonised individual sanctions were not sufficiently deterrent, the Union legislator could proceed to consider criminal sanctions. The second directive which would provide for the determination of the criminal offence and the criminal penalties to be imposed in case of infringements of the Union competition rules could therefore be adopted on the basis of Article 83(2) TFEU. This directive would have a firm basis on the previous harmonisation measure adopted on the basis of Article 114 TFEU. This solution is required to achieve sufficient democratic legitimacy for criminal law legislation while still respecting that Article 83(2) TFEU is the primary legal basis which is envisaged for criminal law measures subsequent to the ratification of the Lisbon Treaty.

4. Conclusions: What Are the Limits of the Union’s Competence to Impose Criminal Sanctions in the Field of Regulatory Criminal Law on the Basis Of Article 83(2) TFEU? The article intended to analyse the scope of the Union’s regulatory criminal law competence subsequent to the ratification of the Lisbon Treaty. It was argued in the article that the legal basis in Article 83(2) does not give the Union a general power to regulate the internal market through criminal sanctions but are subject to several limitations. Firstly, the Union legislator would need to show that criminal sanctions are “essential” for the effective implementation of Union policies. It was submitted that the requirement of “essentiality” implies that the Union legislator and the ECJ need to make a proportionality assessment regarding the need for criminal sanctions. The ‘essentiality’ requirement is a clear limitation on the scope of the Union’s competence since it implies that the Union can only resort to criminal sanctions when there are no less restrictive measures which are equally efficient as criminal sanctions to achieve the objective of effective implementation of Union policies. In this regard, it was argued that the ECJ should apply a strict review of proportionality in relation to criminal law legislation given that criminal penalties is liable to infringe the individual’s fundamental right to freedom to movement and given that a substantive review 130  Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘Reinforcing sanctioning regimes in the financial services sector’, COM (2010), 716 final, p. 11.

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of the merits of a legislative act is necessary if proportionality is to secure legal safeguards for the individuals affected by the criminal law legislation. Further, the ‘essentiality’ test was applied to the case of criminal sanctions in the field of competition law and it was claimed that the Union legislator would be unable to prove that criminal sanctions are essential for the “effective implementation” of Union competition policies. Even if some empirical research suggests that criminal sanctions are more efficient than trading prohibition and personal fines, it is suggested that the Union legislator prior to adopting criminal sanctions need to adopt less intrusive personal sanctions. Given the uncertainty of the deterrent effect of criminal sanctions and given the fact that the Union legislator has no experience from the practical implications of nonpenal individual sanctions, it was contended that it is not at this point appropriate from a legal and policy perspective to adopt criminal sanctions. In addition, it was argued that a combination of personal fines and trading prohibition would in essence have an equally deterrent effect as criminal sanctions for the effective implementation of Union competition policy. Finally, it was contended that the Union legislator needs to use two different legislative measures and two different bases for implementing criminal sanctions in the field of competition law. Even if there are previous harmonisation measures based on Article 103 TFEU, it would be inappropriate from both a legal and a policy perspective to enact criminal law measures directly on Article 83(2) TFEU, without a previous harmonisation measure that harmonises the rules on individual sanctions in the field of EU competition law. Assuming that criminal sanctions should be used as an ultima ratio and given the fact that previous harmonisation measures in competition law has not been concerned with individual sanctions, it is therefore suggested that the Union firstly should adopt harmonised rules on individual sanctions prior to imposing criminal sanctions. Since Article 103 TFEU does not provide sufficient democratic legitimacy, the Union legislator should use Article 114 TFEU to impose harmonised rules on individual sanctions. Subsequent to the adoption of a harmonised measure on individual sanctions based on Article 114 TFEU, the Union may consider, if the harmonised rules on individual sanctions proves to be insufficiently deterrent, to impose criminal sanctions on the basis of Article 83(2) TFEU. Further research needs however to be done in order to make any general conclusions on the general scope of the Union’s competence to impose criminal sanction in the field of regulatory criminal law. In order to develop a general theory of the Union’s regulatory criminal law competence it needs to be analysed whether the principle of subsidiarity, the principle of constitutional identity or any other principle of EU law can delimit the Union’s regulatory criminal law competence.

Part III Criminal Justice

1. The Collapse of the Iron Curtain and the Transition of Justice

Problems in Blaming and Punishing Individuals for Human Rights Violations: the Example of the Berlin Wall Shootings Susanne Walther 1 Dr. jur. (Freiburg 1990), LL.M. (Georgetown 1989), Member, New York Bar (1990), Wissenschaftliche Referentin (Research Associate) at the Max-Planck-Institut of Foreign and International Criminal Law, Freiburg i. Br., Germany

1. Introduction Post-unification Germany appears to differ from other countries whose repressive govern­ments were also toppled by a revolution of the people. But just as do the citizens of other such countries, East Germans and unified German society must find the strength to start anew while facing the economic, social and political ruins of the former state. A nation seek­ing to rectify past governmental wrong by applying the rule of law encounters particular ten­sions. The rule of law may rival the sense of justice: protective procedural guarantees present obstacles to punishing those responsible for human rights violations that went unprosecuted under the former government or state. Another impediment to the mastering of the past (Ver­gangenheitsbewältigung) is that the law, particularly the criminal law, was designed with classical, not governmental criminality in mind. Governmental criminality, with its links to political and societal dogmas of an entire government and legal system and to the world pol­itical scene, may be beyond the reach of the criminal law. These links generate some problems not only regarding the scope of the criminal law, but also regarding the function of the judiciary. Can it remain true to its judicial function and avoid the appearance of political trials? Can law 1  I am indebted to Jorg Arnold, Helmut Gropengieer and Georg Hermes for constructive criticism, and to Emily Silverman for assiduous scrutiny and thoughtful suggestions concerning questions of language, style and content. Any remaining deficits lie, of course, solely with the author. A version of this article will be included in a forthcoming book published by Oxford University Press under the projected title Impunity and Human Rights in International Law, edited by Naomi Roht-Arriaza at the University of California, Hastings College of the Law.

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and justice on the one hand, political mor­ality and legitimacy on the other, be neatly separated? Altogether, the Vergangenheitsbewältigung after the German reunification is so complex that the criminal law academician is faced with a dilemma. Should we approach the ‘GDR Case’ like we would any other with our western set of tools? By doing so, do we run the risk of a kind of national system bias? Questions like this do not lend themselves to easy answers and perhaps ultimately cannot be solved at a national level. Further complexities are added by the fact that the issue of collec­tive Vergangenheitsbewältigung has arisen for the second time in recent German history. For many it may be tempting to equate the legacy of the Socialist Unity Party (SED) with that of the Nazis. Whether the mere comparison bears any legitimacy at all is clearly beyond the scope of this article; suffice it to say that prima facie it appears dubious at best and that histo­rians and political scientists have just begun their work.2 Nevertheless, the occurrence of grave human rights violations in the GDR is undisputed, and focusing on these violations is within the legitimate function of the criminal courts. The unique situation in Germany has arisen because the state whose past is at issue dissolved vol­untarily and joined the Federal Republic by way of consensual treaty. This creates the awk­ward situation that one party to the treaty has assumed the position of judge over the past of the other. The absence of an explicit stipulation of jurisdiction in the treaty itself, particularly with respect to the responsibility of leading state officials for acts of state, gives rise to the suspicion that the stronger party is subduing the defeated. The term ‘Regierungskriminalität’ (‘government criminality’) encompasses a number of vastly different, wrongful acts of state (or acts attributable to the state). Criminal prosecution of grave human rights violations is just beginning. State Security Service (‘Stasi’) repression of critics and opponents of the regime, activities that are still under investigation, may turn out to be the most egregious forms. At present, however, the focus of criminal prosecution is on the trials of GDR border soldiers accused of killing East German citizens attempting to cross the border illegally into the West, particularly at the Berlin Wall. Another case that is rapidly gaining attention are the so-called ‘Waldheim Trials’ that took place in the GDR in 1950. In those trials, over 3,000 Soviet camp prisoners who were classified as Nazi criminals were tried in non-public, summary fashion, without defence attorneys, and sentenced to harsh terms of imprisonment and even death.3 Altogether, the Berlin Wall shootings will most likely not prove to See E. Jesse, ‘Entnazifizierung und Entstasifizierung als politisches Problem. Die doppelte Vergangenheitsbewaltigung’, in J. Isensee, ed., Vergangenheitsbewältigung durch Recht? (Berlin 1992) pp. 9–36. 3  See Der Spiegel, ‘Das waren Blutrichter’, 7 Sept. 1992; F. Werkentin, ‘Scheinjustiz in der früheren DDR’, KritJ (1991) pp. 333–350; see also the declaration of nullity and declaratory quashing of 2 



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be amongst the gravest violations of human rights. They are, how­ever, not only among the most visible; more importantly perhaps these cases allow one to im­mediately single out individuals responsible for them – the low-level soldiers who pulled the trigger. The Vergangenheitsbewältigung is not limited to criminal prosecution but encompasses other forms of legal redress as well.4 Among the most important of these is the review of GDR convictions.5 Judicial powers include cassation and the authority to award compensa­tion for wrongful prosecution,6 retrial, declaration of incompatibility with rule of law stand­ards or inappropriateness of legal consequence, and rehabilitation of persons convicted for making use of their basic political rights.7 Other forms of redress include legislative efforts toward compensation for the victims of the SED regime, as well as the unprecedented open­ing of the Stasi documents. Each of these areas raises its own set of questions. In this article, I shall cast some light on the problems of criminal prosecution as exemplified by the Berlin Wall cases. While, in the meantime, more cases involving killings at the Wall are being tried, the focus of this article will be on the first two decisions published by the Landgericht Ber­lin8 (Mauerschützen I 9 and Mauerschützen II 10), on the appellate opinion of the Bundesge­richtsjudgment by the Bezirksgericht Dresden of 28 October, 1991, NJ (1992) p. 69. 4  For an instructive overview, see A. Eser, ‘Deutsche Einheit: Übergangsprobleme im Strafrecht’, GA (1991) pp. 241–268, at pp. 263 et seq. 5  See G. Schmidt, ‘Aus der Arbeit der unabhängigen Ausschüsse zur Überprüfung von Strafurteilen der ehemaligen DDR in Strafsachen’, in Festschrift für Rudolf Schmidt (Tilbingen 1992) pp. 344–356. 6  According to 16a StrEG (Prosecution Compensation Law) in combination with §§ 369 et seq. GDR Criminal Procedure Code; see A. Eser (supra n. 4) pp. 264–265. 7  See W. Pfister, ‘Das Rehabilitationsgesetz’, NStZ (1991) pp. 165–171 (part 1). 8  County Court, with original jurisdiction in most felony cases; cf. §§ 74 et seq. StPO (German Criminal Procedure Code). 9  LG Berlin, Judgment of 20 January, 1992, JZ (1992) p. 691. This case implicated four defendants and arose out of an attempt of two young GDR citizens to cross the Wall not long before its fall. One defendant was convicted of manslaughter in a minor degree, one of attempted manslaughter in a minor degree, and two other defendants were acquitted. Defendant H., who was sentenced to three years and six months of imprisonment, had shot at the victim about to cross the last border security device on GDR ground, a metal fence, from a distance of less than 40 m. According to the judicial findings, the defendant had aimed at the fugitive’s upper body and thereby taken into account that his shot could be deadly. His two prior warning shots had not stopped the victim. Defendant K. who was sentenced to two years on probation had shot with automatic gunfire from his Kalaschnikow from a distance of at least 125 m, which according to the Landgericht constituted attempted manslaughter. 10  LG Berlin, Judgment of 5 February (1992) NStZ (1992) p. 492. According to the judicial findings of fact as stipulated in the Bundesgerichthof ’s Fifth Senate appellate decision (infra n. 12) at 141, the defendants W. and H. belonged to the GDR border troops, W. as Unteroffizier (junior officer) and H. as soldier. On 1 December (1984) at 3.15 a.m. they shot at the 20 year-old GDR citizen S. who was about to cross the Wall into West Berlin. As S. climbed up his ladder he was hit by the defendants’ automatic gunfire. Defendant W., after having yelled at S. in order to stop him and after firing warning shots, shot at him at a distance of approximately 150 m., defendant H. from a distance of 110 m. Within the five seconds of S’s climbing up the ladder, the defendants had each fired more than 20 bullets. Both defendants did not want to kill S., whom they believed

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hof ’s 11 Fifth Senate in Mauerschützen II 12 and on the trial of Erich Honecker before the Landgericht Berlin.13 It is beyond the scope of this article to discuss the already quite ex­tensive academic writing on this subject. In the following, a brief outline of the relevant post-unification criminal law issues (2) will lead to a discussion of the international and constitutional law issues the courts had to face in establishing the border soldiers’ criminal responsibility (3). A look at problems of individual attribution and personal culpability (4) will be followed by the special problems in trying Honecker and other top-level officials (5). I shall then question the reasonableness of the sen­tencing in the Mauerschützen cases and raise the issue of appropriate sanctions in human rights cases in general (6). Finally, some perspectives on the legitimacy of ex post facto criminal justice and on the problems of state prosecution of human rights cases in general will conclude the article (7).

2. Post-Unification Criminal Law Issues Between the construction of the Berlin Wall in 31 August 1961 and its destruction in No­vember 1989 over 200 people were killed by GDR border soldiers at the inter-German bor­der. The last death occurred just a few months before the Wall fell. In reunified Germany prosecution authorities have begun the process of determining who, if anyone, can be held criminally responsible for these killings. Homicide investigations against border soldiers in­itiated prior to 3 October 1990 by the Prosecution General of the GDR were taken over by the prosecution authority at the Landgericht Berlin according to the regulations of the Unifi­cation Treaty.14 to be a spy, saboteur or ‘criminal’, but they were aware of the possibility of a deadly hit. The bullet causing S.’s death entered into his back when he had already put his hand on the mural crown. He was only taken to a hospital more than two hours later and died there. He would have lived had he received immediate medical care. The delay was the result of secrecy and competence regulations unknown to the defendants. Before entering into service at the border, they had been asked whether they were willing to make use of their firearms against ‘border violators’, which they answered positively. Before each service, they were subject to a ‘guard mount’, detailing the course of action in the event of a border violation, which included the use of possibly deadly force if necessary to thwart flight. 11  Federal High Court, with appellate jurisdiction in civil and criminal cases. Criminal cases originating in a Landgericht may be appealed directly to the Bundesgerichtshof if specific grounds for appeal are established. 12  BGH, Judgment of 3 November (1992) (5 StR 370/92), NJW (1993) pp. 141–149. 13  Meanwhile the proceedings have been dismissed; see text infra 3.3. 14  App. I, Chapt. III A, Sec. III lz, Treaty between the Federal Republic of Germany and the German Democratic Republic on the creation of German unity (Unification Treaty) of 31 August (1990) (BGBI. II 889), with Amendment Clause of 9 September (1990) (BGBI. II 1239) and Unity Treaty (ratification) law 23 September (1990) (BGBI. II 885); a special working group was established to investigate government criminality. For a comprehensive overview of the historic developments leading up to the treaty see A. Eser (supra n. 4).



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The pivotal questions for the prosecution were what law to apply and whether the border soldiers accused of willful homicide could claim grounds of justification or excuse. Under East German law, justification would be conceivable if based on the GDR’s Border Law firearm provisions. If West German law were applied, justification would be ruled out, leav­ing only the possibility of excuse based on unavoidable lack of consciousness of wrongdoing (mistake of law).15 After 1973, West German courts generally applied West German law in accordance with the rules of international jurisdiction when adjudicating crimes committed in the GDR.16 On the basis of the Unification Treaty, however, it is widely agreed that crimes committed in the GDR before 3 October 1990 must be analyzed twice: firstly accord­ing to the applicable laws of the GDR and then according to those of unified Germany.17 The results are then compared and the more lenient law applied.18 Although willful homicide was a criminal offence in the GDR too (of course), the use of firearms by border soldiers at the inter-German border was authorized under certain circum­stances.19 The question is: to what extent? Were border soldiers allowed to use their weapons to enforce the prohibition of unlawful leaving even if the consequence was the death of the transgressor? To date, an explicit shooting order has not been verified. Neither the internal orders and regulations of the Ministries for National Defence and the Interior regulating the use of firearms nor the border security regulations in § 27 of the Border Law 1982 authorized kill­ing with intent or contingent intent.20 The § 17 German Criminal Code. Before the Grundlagenvertrag (Basis Treaty) of 1973 between the two Germanys, the courts treated the German Democratic Republic like it treated its own Länder (states), generally applying East German law as the lex loci according to West German (customary) rules of interlocal jurisdiction. See A. Eser (supra n. 4) pp. 256 et seq.; H.-H. Jescheck, Lehrbuch des Strafrechts; Allgemeiner Teil, 4th. ed. (Berlin 1988) p. 169. 17  As provided in the Unification Treaty, West German criminal law superseded East German criminal law with only a few exceptions, the most significant concerning abortion and homosexuality. 18  § 2 German Criminal Code (StGB), Art. 315 Introductory Law to the German Criminal Code (EGStGB); LG Berlin (Mauerschützen I) (supra n. 9); LG Berlin (Mauerschützen II) (supra n. 10); BGH (supra n. 12) at 142; but see the differing view of G. Küpper/H. Wilms, ‘Die Verfolgung von Straftaten des SED-Regimes’, ZRP (1992) pp. 91–96. The provisions of the Unification Treaty do not expressly condition the application of GDR law by an ‘ordre public’ clause. See J. Polakiewicz, ‘Verfassungs- und völkerrechtliche Aspekte der strafrechtlichen Ahndung des Schusswaffeneinsatzes an der innerdeutschen Grenze’, EuGRZ (1992) pp. 177–190, at p. 180. 19  Punishable under §§ 112 GDR Criminal Code as murder, in minor cases as manslaughter. 20  German criminal law theory generally defines ‘intent’ (Vorsatz) as a state of mind where the perpetrator fulfils all the elements of the crime ‘knowingly and willfully’ (Vorsatz, or dolus directus of the second degree). It recognizes one stronger form of intent, Absicht or dolus directus of the first degree, where the perpetrator acts out of direct interest in the fulfilment of certain crime elements; and one weaker form, bedingter Vorsatz or dolus eventualis, the definition of which is a long-standing controversy among German scholars. See H.-H. Jescheck (supra n. 16), pp. 266 et seq. Generally, it can be said that the perpetrator acts with contingent intent when he is aware that his conduct may fulfil the elements of crime, but still chooses to act, more or less 15

16 

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internal regulations authorized the use of firearms if, and when necessary, to arrest persons disregarding the border patrols’ orders, and the Bor­der Law 1982 authorized the use of firearms ‘to prevent the imminent commission or con­tinuation of a crime which under the circumstances constitutes a felony’.21 Thus, in order to legitimize shooting at border violators, the GDR Criminal Code had only to declare the ‘un­lawful frontier-crossing’ a felony, which it did for ‘grave cases’: crossing the frontier with accomplices or crossing by way of ‘dangerous means and methods’, for example, constituted grave cases.22 According to the prevailing view, the crossing of the high-security frontier fortifications practically always met this definition. However, according to the letter of the law, the use of firearms had to be reasonable. Specifically, the use of firearms was defined as ‘the utmost measure of force against persons’, and a person’s life should be ‘spared as far as possible’.23 Thus, the law of the GDR did not contain a statutory, literal exemption from punishment for the contingently intentional use of deadly force, and yet, what was the meaning of ‘to spare as far as possible’? Was the killing of the transgressor acceptable in cases where the fleeing person could not otherwise be stopped? As the Landgericht Berlin in Mauerschützen I and Mauerschützen II as well as the Bundesgerichtshof ’s Fifth Senate in its appellate opi­nion of 3 November 1992 assumed, this was the official GDR interpretation, which was re­peatedly conveyed to the border soldiers during their routine guard mount; according to the judicial findings, the ‘Befehlslage’ (‘command status’) for the thwarting of flight authorized even the conscious use of deadly force against fleeing persons if milder means were not suf­fi cient.24

3. International and Constitutional Law Problems of Establishing Criminal Responsibility: Do We Have to Respect Possible Impunity Grounds Provided by GDR Law? Thus we face the problem of whether the legal standards as practiced in the GDR must now be accepted by the German courts, leading to the acquittal of defendants charged with man­slaughter. This is highly controversial. Possible doctrinal approaches discrediting GDR im­punity grounds can be outlined as follows. putting up with or accepting the result. In American criminal law doctrine, the term ‘reckless’ appears to encompass such forms of conduct; cj Black’s Law Dictionary, 6th ed. (St. Paul Minn. 1990) ‘Reckless’, p. 1270. 21  § 27 cl. 2 Border Law. 22  § 213 cl. 3 Nr. 2 Criminal Code. 23  § 27 cl. 1 and 5 Border Law. 24  See Landgericht Berlin (Mauerschützen I) (supra n. 9) p. 692; Landgericht Berlin (Mauerschützen II) (supra n. 10) p. 492 (‘Border violations are intolerable under all circumstances. Border violators must be stopped or destroyed.’); Bundesgerichtshof (supra n. 12) pp. 143–144.



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(1) Relying upon international offences: the accusations could be elevated to the level of international crimes, as ‘crimes against humanity’. The existence of international crimes of this kind was recognized in the statutes of the International Military Court at Nürnberg and Tokyo and in the Control Council Law Nr. 10.25 However, the use of firearms by individual border soldiers cannot be compared to the crimes adjudged against humanity in Nürnberg and Tokyo. However, government officials responsible for the implementation of shooting policy may well have committed such crimes if evidence of a high-level shooting order can be found.26 (2) Nullification of state-granted impunity on the basis of higher, inalienable principles of law: as our judiciary did in trials of Nazi collaborators, we could rely on inalienable, higher principles of law, on a ‘core of law, which according to universal conviction cannot be breached by any legislative act or any other authoritative measure.’27 According to a leading judgment of the Bundesgerichtshof in 1952, the ‘core of law’ encompasses ‘certain principles of human conduct, viewed as inviolable, which were built over time in all civilized peoples on the basis of commonly shared moral beliefs, and which remain legally binding even if particular provisions of the national legal systems seem to authorize their defiance.’28 The court conceded that it may be unclear where to draw the line; but in accordance with Rad­bruch’s famous definition, it regarded it as transgressed where governmental orders ‘not even aspire to justice, consciously deny the idea of equality, and clearly disregard the convictions, common to all cultured peoples, regarding the worth and dignity of the human person’; such orders ‘do not create law, and conduct in compliance with them remains Unrecht (un­law).’29 In another opinion the Bundesgerichtshof stated that assaults on life must be sub­jected to particularly strict scrutiny: except for the execution of a court-ordered death sentence, killings may be permissible only ‘if ensuing from an absolutely necessary use of force.’30 (3) Nullification of state-granted impunity on human rights grounds: the third possibility is also grounded in the law of nations: punishment for unlawful but exempted conduct could be reinstated in reliance on the exemption’s incompatibility with internationally recognized basic and human rights.

25  See D. Oehler, Internationales Strafrecht, 2nd ed. (Köln 1983) pp. 605 et seq., at p. 640; U. Vultejus, ‘Verbrechen gegen die Menschlichkeit’, StV (1992) pp. 602–607; for an instructive summary of the relevant international law see J. Polakiewicz (supra n. 18) pp. 181 et seq. 26  Suggested by J. Polakiewicz (supra n. 18) p. 186. 27  BGHSt 2, 234, p. 237 (1952). 28  BGHSt 2, 234, p. 237 (1952). 29  BGHSt 2, 234, p. 239 (1952); see G. Radbruch, SJZ (1946) pp. 106–108, p. 105. 30  BGHSt 15, 214, p. 216 (1961) (with reference to Art. 2 European Convention on Human Rights).

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susanne walther 3.1. Principle of Nullum Crimen Sine Lege; Prohibition of Retroactive Establishment of Criminal Liability (Ex Post Facto Prohibition)

Disregarding exemptions from punishment provided by GDR law could possibly be fore­closed by the notion that offenders are entitled to the protection of the principles of nullum crimen sine lege and nullum crimen sine lege scripta, principles laid down in our Grundge­setz 31 and in the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention).32 Thus, some authors have cited the prohibition of retro­active establishment of criminal liability (ex post facto prohibition), encompassed by the nul­lum crimen principle, to support the view that justifications grounded in the GDR Border Law must be respected by the German courts today.33 According to this view, only ‘ex­cessive perpetrators’ may be punishable, i.e. those whose conduct went beyond the limits of the Border Law itself, assuming, for instance, that this was the case when border soldiers shot at fleeing persons ‘with automatic machine-gun fire or with intent to kill’.34 Some authors contend, however, that the ex post facto prohibition applies not only to the law as written but also to the law as practiced, a view that would in effect amount to something like a general Vertrauensprinzip (reliance principle).35 Neither the Landgericht Berlin nor the Bundesgerichtshof has shared such a far-reaching interpretation of the prohibition. The Landgericht Berlin in Mauerschützen I, citing ‘core of law’ jurisprudence, held that the ex post facto argument vitiates the principle that laws in violation of the core of law are null and void.36 The court referred to a 1953 Bundesverfassungsgericht 37 decision that drew this lesson from the Nazi experience in Germany: ‘(…) the legislature may also create Un­recht so that, if the practice of law is not to be left unarmed in the face of such conceivable historic developments, it must remain possible in extreme cases to value the principle of Ge­rechtigkeit (material justice) higher than the principle of Rechtssicherheit (certainty of the law), as generally represented by the validity of the written law.’38 In contrast, in 31  Art. 103 cl. 2, Grundgesetz für die Bundesrepublik Deutschland, May 23, 1949, BGBI. 1. (Constitution). 32  Art. 7 cl. 2 European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November, 1950, 213 V.N.T.S. 222. 33  J. Polakiewicz (supra n. 18), pp. 187 et seq.; G. Jakobs, ‘Vergangenheitsbewältigung durch Strafrecht?’, in J. Isensee (supra n. 2) pp. 37–65, at p. 39, pp. 52 et seq.; J. Arnold and M. Kühl, ‘Forum: Probleme der Strafbarkeit des Schusswaffengebrauchs von “Mauerschützen”’ JuS (1992) pp. 991–997, at pp. 994 et seq. 34  J. Polakiewicz (supra n. 18) p. 190. 35  See G. Jakobs (supra n. 33) p. 44. 36  LG Berlin (supra n. 9) p. 693. 37  Federal Constitutional Court, with jurisdiction to review on constitutional grounds in cases and controversies as specifically provided in the Grundgesetz (Basic Law), Art. 93. 38  BVerfGE 3, 225, at 232 (1953).



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Mauerschützen II another chamber of the Landgericht Berlin held that the GDR Border Law was binding but that the shootings in question had violated it.39 The Bundesgerichtshof, on the other hand, found that GDR state practice justified even the use of automatic machine gun fire and contingent intent to kill in order to prevent border violations.40 As far as they were seen as authorizing this type of conduct, the Court held the GDR border security regulations on the use of firearms not binding: a law justifying the prevention of unlawful leave from the GDR even at the price of the fugitive’s life violates higher, elementary principles of law which demanded observance in the GDR as well. Thus, the Bundesgerichtshof reached the same result as the Landgericht Berlin in Mauerschützen I relying, however, on the ‘international law’ solution as outlined supra (3): empha­sizing that the discarding of national justification grounds must be limited to exceptional cases, the Court held that a violation of the Federal Republic’s ordre public would not be sufficient for doing so.41 Grounds for justification existing at the time of conduct may only be disregarded if they involve obvious violations of fundamental principles of justice and hu­manity. In support of its argument the Court did not have to rely on its earlier ‘core of law’ jurisprudence and in dicta called the application of these principles to cases of this kind ‘not easy, since the killing of human beings at the inter-German border cannot be put on an equal footing with the Nazi mass murder’. Instead, it was able to draw on ‘more concrete stand­ards’ embodied in international human rights covenants, namely the right to the protection of life in Art. 6 cl. 1 and the right to leave in Art. 12 cl. 2 of the International Covenant on Civil and Political Rights of 196642 (International Covenant), which was ratified by the GDR in 1974 and entered into force in both German states in 1976.43 The Court, holding that the GDR state practice based on its interpretation of the GDR Bor­der Law violated human rights, hastened to explain that in reaching this conclusion it had not drawn on the values embodied in the West German Grundgesetz or in the European Conven­tion.44 It emphasized that instead it had limited its analysis to the tenets grounded in the GDR’s own law, revealing that LG Berlin (supra n. 10), at p. 493. BGH (supra n. 12) p. 144. 41  BGH (supra n. 12) p. 144, contrary to G. Küpper and H. Wilms, ‘Die Verfolgung von Straftaten des SED-Regimes’ ZRP (1992) pp. 91–96, at pp. 91, 93. The notion of ordre public is found in the German customary rules of interlocal criminal jurisdiction; the principle that the lex loci is applied is suspended when it contradicts ‘inalienable principles’ of the lex fori. For instance, under the application of interlocal rules of jurisdiction between two crimes committed in the GDR, a defendant convicted of murder based on GDR law could not, even though provided by GDR law, be sentenced to death in a West German court, because our Grundgesetz expressly abolished the death penalty; see H.-H. Jescheck (supra n. 16) pp. 169–170. 42  International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171. 43  BGH (supra n. 12) p. 144. 44  Not joined by the GDR. 39  40 

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the GDR Constitution not only encompassed the protection of human life but also subjected infringements to the scrutiny of a limiting principle ‘known in the Federal Republic’s constitutional law as the principle of reasonableness’.45 If inter­preted in accordance with this principle, the Border Law could not be viewed as justifying the use of deadly force where the border violator, although acting feloniously under GDR criminal law, appeared unarmed and did not pose a threat to the life or limb of others.46 With respect to the ex post facto prohibition, the Court argued that although it protects against change of justification principles as well as change of elements of crime, the prohibi­tion is a limited one as evidenced by its embodiment in the International Covenant and in the European Convention. Accordingly, the Court argued that the prohibition does not preclude the conviction of people whose conduct at the time of commission was punishable under the principles of law commonly recognized by the community of nations.47 However, the Court then focussed on how the statute in question ought to be interpreted and thereby actually sidestepped the full-blown ex post facto problem that would have arisen had it declared the Border Law provisions on the use of firearms null and void. For the Bundesgerichtshof, the question was one of ‘right’ interpretation and application. Since it regarded the state practice in question as unlawful and unworthy of reliance ex tunc, it saw no collision between the principles of Rechtssicherheit (certainty of the law) and Gerechtigkeit (material justice). Basically, the Bundesgerichtshof refused to encompass within the nullum crimen sine lege prin­ciple the right to rely on the state practice at the time of commission, if such reliance would amount to recognition of a justification for human rights violations.48 3.2. Problems of (International) ‘Grey Areas’ Concerning the Right to the Protection of Life and the Right to Leave As mentioned above, the International Covenant was ratified by the GDR and it entered into force, but the GDR subsequently did not transform it into national law (as provided in Art. 51 of the GDR Constitution). The consequences of this failure to transform are controversial: it can be argued that without transformation the standards in the Covenant were not binding on the GDR.49 The Bundesgerichtshof, however, disagreed. Without directly addressing when the actual commitment to observance of rights guaranteed by the Covenant BGH (supra n. 12) p. 146–47. BGH (supra n. 12) p. 147. 47  BGH (supra n. 12) p. 147; Art. 15 cl. 2 International Covenant on Civil and Political Rights of 1966; Art. 7 cl. 2 European Convention on Human Rights of 1950. 48  BGH (supra n. 12) p. 148. 49  The argument has been advanced, for instance, by J. Arnold and M. Kühl (supra n. 33) p. 995. 45  46 



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arose, the Court seems to have assumed that ratification or promulgation made the Covenant binding on the GDR, and the mere failure to transform did not change this situation.50 Laudable as the Court’s elevation of international human rights over concerns of national sovereignty may be, the Court has largely ignored the international law problem of whether and when treaties are ‘self-executing’.51 Instead, it was satisfied that the prevailing view in the GDR itself, as pronounced in an international law treatise, was that a state cannot avoid an international commitment by using its national legal order as a pretence.52 However, it is far from clear internationally if and when international human rights agreements take pre­cedence over the law-making prerogative of sovereigns when it comes to the protection of the rights of the individual.53 Moreover, a closer look reveals that the international consensus on the rights to the protection of life and to leave is less than air-tight and that there are no­ticeable grey areas when protection of these rights conflicts with national security interests. As to the protection of life, it would be interesting to research how potential conflicts be­tween alleged national security interests and respect for human life are addressed by the laws and practices of other nations around the world. It seems widely agreed upon that the use of firearms with direct intent to kill is in violation of Art. 6 of the International Covenant, which protects against ‘arbitrary’ deprivation of life. There seems to be no general consensus, how­ever, on what grounds may justify the possibly deadly use of firearms.54 From the criminal law perspective, the pivotal question is that of the state of mind of the offender (here the GDR border soldier) regarding that ‘possibility’. May border security offi­cials make lawful use of their firearms, thereby consciously taking into account the possi­bility of a deadly outcome, i.e. shooting in a manner that evinces dolus eventualis? In 1988, the Bundesgerichtshof in the ‘Motorcycle case’ 55 acquitted a customs officer charged with the offence of gefährliche Körperverletzung (inflicting dangerous bodily injury).56 A motor­cyclist had evaded the border check, and the customs officer, after giving off two warning shots, had directly aimed and shot at the fleeing motorcyclist’s passenger. The Court held that this conduct was in accordance with West German border security BGH (supra n. 12) p. 145. According to I. Seidl-Hohenveldern, Völkerrecht, 6th ed. (Köln 1987), pp. 561–562, only a few states, like the Federal Republic of Germany, Austria (with exceptions), Switzerland, and the United States seem to recognize such an ‘automatic’ transformation if the treaty has been ratified and officially published. 52  BGH (supra n. 12) p. 24. 53  See 1. Polakiewicz (supra n. 18) pp. 186 et seq. 54  See 1. Polakiewicz (supra n. 18) p. 183. 55  BGHSt 35, 379. 56  § 223a German Criminal Code. 50  51 

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laws authorizing the use of firearms against persons evading an order to stop or the checking of their person, ve­hicle, or carry-on items. As is expressly required by the statute in issue, the use of firearms must be reasonable.57 It is admissible only ‘to render impossible attack or flight’. However, whether and when this may be achieved at the price of a deadly outcome is left open. The use of firearms is gener­ally banned if the endangerment of ‘identifiable third parties’ is highly probable, except if it is unavoidable ‘when proceeding against a crowd’.58 The law contains an unqualified shoot­ing ban only with regard to persons who appear to be of tender age.59 Thus, our own statu­tory authorization of the use of firearms can be criticized, because the question of whether the use of deadly force is acceptable has no clear textual answer, and is left up to the legal ‘interpreter’ – just as it was in the GDR Border Law!60 Of course, East German interpretation in practice was different from West German interpretation: whereas the GDR practice was characterized ‘by the precedence of flight prevention over the protection of life’,61 the con­scious taking into account of the death of persons subject to border control has never been of­ficially supported or condoned in West Germany, and the Bundesgerichtshof in its 1988 decision made clear in dicta that such conduct would not be lawful.62 In its recent Mauerschützen judgment, the Bundesgerichtshof viewed the border soldiers’ subjective element of contingent intent as the factor distinguishing it from the ‘Motorcycle’ case, where the de­fendant was found not to have taken into account a fatal outcome.63 More convincingly per­haps, the Court criticized the vagueness of the ‘arbitrariness’ standard qualifying the protection of life under Art. 6 cl. 1 of the International Covenant and pointed to the tendency, discernible in other states as well, to emphasize strongly the principle of reasonableness and limit the possibly deadly use of firearms by state authorities to the defence of seriously en­dangered third parties.64 As to the right to leave, international law guarantees leave something to be desired as well. Whether customary international law recognizes the right seems to be widely regarded as non-verifiable.65 In international treaty law, it is embodied in the Universal Declaration of Human Rights of December 10, 57  §§ 12, 13 UZwG (Law on the immediate use of force by authorities); in particular there must be a warning, which may be a warning shot. 58  § 12 cl. 2 UZwG. 59  § 11 UZwG. 60  See BGH (supra n. 12) p. 143: ‘How the life of the fleeing person had to be weighed against the inviolability of the border could not be read in the law’. 61  BGH (supra n. 12) p. 144. 62  See BGHSt 35, 379 pp. 386 et seq. 63  BGH (supra n. 12) p. 148. 64  BGH (supra n. 12) p. 146, with special reference to Tennessee v. Garner, 471 U.S. 1 (1985); see also the thorough discussion by J. Polakiewicz (supra n. 18) pp. 184–85 with further references. 65  For the following see J. Polakiewicz (supra n. 18) pp. 186–87.



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1948, as well as in numerous other human rights treaties.66 In particular the right to leave is protected in Art. 12 cl. 2 of the International Covenant. Again, neglecting the problems of transformation, the Bundesgerichtshof held the GDR to its ratification and regarded its border system as a violation of Art. 12 of the International Cove­nant.67 The Court considered the fact that ‘other states also restrict their citizens right to leave’, that different opinions exist among members of the United Nations regarding the de­veloping countries’ desire to prevent the emigration of the intelligentsia, and that the authors of our own Basic Law did not want to embody the right to leave for fear of undesirable emi­gration of the work force. However, the Court believed the GDR practice distinguishable mainly on two grounds: the denial of leave was the rule, not the exception, and the GDR bor­der system was of ‘particular harshness’. The Court said: ‘Germans from the GDR [had] a special motive for their desire to cross the borders to West Berlin and West Germany: they and the people on the other side of the border belonged to one nation and were connected with them through manyfold kinship and other personal relations’. The Court further opined that the situation created by ‘the restrictive passport and leave regulations cannot be assessed under the aspect of human rights without regarding the real circumstances, characterized by “the Wall, barbed wire, death zone and shooting order (…)”, violating Art. 6 of the Interna­tional Covenant on Civil and Political Rights’.68 The Court did not, however, examine the issue of travel restrictions enforced in the name of ‘national security’, as upheld, for instance, in the ‘Elfes’ judgment of the Federal Constitutional Court in 1957.69 Also, in the United States travel to Cuba was severely restricted during the ‘Cold War’.70 Of course, the personal and national bonds between East German and West German citizens could be viewed as constituting the particular peril of the GDR’s ‘bleeding to death’ in the post-World War II political circumstances, a peril that the building of the Wall in 1961 sought to avoid. In sum, the Court brushed away all too lightly the tremendous complexities regarding the historical Universal Declaration of Human Rights, G.A. Res. 217 (III), U.N. Doc. A810 (1948). BGH (supra n. 12) p. 145. 68  BGH (supra n. 12) p. 146. 69  BVerfGE 6, 32, at pp. 33, 44 (1957); according to the Elfes decision, the protection of ‘the security and substantial concerns of the state’ was sufficient for the restriction of general personal liberty, protected in Art. 2 cl. 1 Basic Law (GG), which is also deemed to protect the right to leave. The citizen in this case had repeatedly and publicly, even abroad, voiced ‘his very critical opinion on the Federal Government’s policy’, in particular regarding military policy and question of reunification. He was denied the renewal of his passport which he needed to travel to an international peace congress in Vienna where he intended to read a ‘Gesamtdeutsche Erklärung’ (all-German declaration). See also G. Grünwald, ‘Die strafrechtliche Verantwortlichkeit in der DDR begangener Handlungen’, StV (1991) pp. 31–37, at p. 37. 70  See W.B. Lockhart, Y. Kamisar, J.H. Choper and S.H. Shiffrin, Constitutional Law, 6th ed. (St. Paul/Minn. 1986) p. 550 with further references. 66  67 

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background of East-West politics as well as general problems regard­ing the true international status of the right to the protection of life and the right to leave. The opinion’s deficits seem all the more reprehensible as the Court’s arguments serve to es­tablish individual criminal liability.

4. Problems of Individual Attribution and Personal Culpability The criminal law is concerned with the individual’s culpability. The primary question is whether a given ‘result’ is attributable to the alleged perpetrator himself or whether his role was only that of aiding another person’s crime. If one believes that the border soldiers were instruments of their superiors, one could argue that the actual perpetrators should be sought among the rear-rank commanders and decisionmakers.71 The Bundesgerichtshof, while tradi­tionally, if with differing emphasis and result, considering subjective criteria (such as the of­fender’s intention and personal interest to commit a crime) in drawing the line between perpetrators and aiders and abettors, was satisfied in the Mauerschützen case that the defend­ants had fulfilled all the elements of crime.72 It argued in addition that unlike persons who receive an order immediately before shooting, the defendants here had had ‘a certain room of action’ since they were left on their own in case of a suddenly appearing fugitive.73 Problems of attribution can arise on the rear-rank level, too, especially since GDR law recognized only a limited form of indirect perpetration: commission of a crime ‘through another’ required that the ‘other’ not be responsible himself.74 Leaving this aside, however, it is yet to be seen whether the power structures within the governmental organization of the GDR will really raise attribution problems that are insurmountable by criminal law doctrine. The biggest problem, in my opinion, lies in the border soldiers’ individual culpability, more specifically their consciousness of wrongdoing. The Landgericht Berlin (in Mauerschützen II) as well as the Bundesgerichtshof have adopted a rather rigorous view and re­jected both the defences of ‘action under superior orders’ and of ‘mistake of law’ (lack of consciousness of wrongdoing). As to the defence of ‘superior orders’, the Bundesgerichtshof applied West German (military) 71  The BGH had taken this view in 1962 in the case of the Soviet secret agent Stachinskij who had carried out a mission to kill; BGHSt 18,87. It should be kept in mind, however, when viewing this case that according to the German Criminal Code (then and today), a conviction of murder carries a mandatory sentence of life imprisonment, a sentence which the Court seems to have deemed too severe. 72  See H.-H. Jescheck (supra n. 16) pp. 588 et seq., advancing the argument that the differentiation between perpetration and aiding or abetting, in practice, has largely become a question of choice of punishment rather than one of fulfillment of the elements of crime. 73  BGH (supra n. 12) p. 148. 74  § 22 cl. 1 GDR Criminal Code. Other recognized forms of indirect perpetration, defined under the term of ‘participation’, are instigation, complicity, and aiding and abetting, § 22 cl. 2.



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law (the more lenient law), which exempts the subordinate from punishment except in cases where he recognizes that following the order would con­stitute an unlawful action or where this is ‘obvious under the circumstances known to him’. The Bundesgerichtshof affirmed the latter for the defendants here.75 In this context the ques­tion arises to what extent various legal systems exempt subordinates (especially in military structures) from what can be called a duty to ‘think twice’ in cases of doubt. Interestingly, West German military law knows no such duty, granting the defence of ‘superior orders’ un­less there is no doubt about its unlawful nature; under East German law, the existence of a duty to examine ‘whether the order, recognizable for everyone, violates criminal and interna­tional law’ has been assumed.76 In light of the recent Bundesgerichtshof decision it is ques­tionable, however, what is really left of the more permissive West German defence of ‘superior orders’ since the Court markedly qualified it with respect to the protection of life: the Court argued that, despite the high degree of political indoctrination to which the border soldiers had been exposed, even for them ‘the elementary prohibition to kill was obvious’, and that besides ‘the great majority of the GDR population disapproved of the use of firearms at the border’.77 This did not, however, settle the question of culpability since the possible defence of una­voidable lack of consciousness of wrongdoing, according to which the defendants would have acted ‘without guilt’, remained.78 Here, too, the courts did not see much difficulty: the Landgericht Berlin held that even the ‘intellectually simple-minded’ defendants, whose per­sonal development had been influenced by a rigid military training, could have realized that military duty does not justify all conduct. If they believed their conduct to be justified their mistake was not unavoidable since life is the highest of all legal interests.79 The Bundesge­richtshof felt it could not take exception to this view, adding that the trial judge could also have pointed out that in the course of their training, the border soldiers had been told that they did not have to follow orders requiring them to act inhumanely.80 The Court only briefly considered GDR criminal law doctrine as possibly more lenient. It apparently would have cast the issue as one of lack of intent, intent requiring that the perpetrator knew that he was violating basic social norms. The difference is an important one: for the defence of lack of intent it is irrelevant whether underlying erroneous assumptions were avoidable, making it a much stronger defence than that of lack of consciousness 75  76  77  78  79  80 

§ 5cl. 1WStG (Military Criminal Code); BGH (supra n. 12) p. 149. See J. Arnold and M. Kühl (supra n. 33) p. 996; BGH (supra n. 12) pp. 148–49. BGH (supra n. 12) p. 149. § 17 cl. 1 German Criminal Code. LG Berlin (supra n. 10) p. 495. BGH (supra n. 12) p. 149.

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of wrongdoing. The Court dis­missed the issue because it was not convinced that, under GDR law, it would have con­stituted lack of intent to believe that an order must be followed even if it violates the criminal law.81 In sum, the Bundesgerichtshof deserves criticism not only for failing to scrutinize more closely the nature of the actual orders and the defendant’s ability to recognize them as wrong, but also for dismissing in such short-cut fashion the possibility that the application of GDR criminal law doctrine might have led to an exoneration of the defendants based on lack of intent.82

5. Special Problems in Prosecuting Top-Level Decisionmakers As yet, officers on the intermediate hierarchy level have not been charged with homicide. However, a number of top-level decisionmakers have been put in the dock, including the for­mer State Council and Party chairman Erich Honecker. Accusations against government offi­cials lead to a whole new set of legal questions ensuing from the principle of sovereign immunity. In addition, many of the top-level defendants currently on trial are aged and ail­ing, a fact which casts doubt on their ability to stand trial. Moreover, questions of societal peace arise: if the GDR state representatives are eventually exonerated in a criminal court, will it not be true that the big fish have been set free while the little fish have been caught? Klaus Kinkel, Minister of Justice at the time of reunification and minister of Foreign Affairs at present, has termed this idea ‘deeply repugnant’,83 and the leading magazine ‘Der Spiegel’ believes that an acquittal of Honecker ‘would expose the unified Germany to ridicule before the whole world’.84 The charges against Honecker have been reduced to 13 cases of manslaughter.85 The pros­ecution has alleged the existence of a ‘Schieszbefehl’ (shooting order). Allegedly issued in 1974 at a meeting of the National Defence Council, the ‘Schieszbefehl’ decreed not only the fortification of the inter-German border and of the Berlin Wall but also ‘the relentless use of the firearm’ in cases of border violations.86 Other GDR government officials have been questioned. According to principles of public international law, heads of state are not normally subject BGH (supra n. 12) p. 149. To the point J. Arnold and M. Kühl (supra n. 33) pp. 996–97. 83  K. Kinkel, ‘Wiedervereinigung und Strafrecht’, JZ (1992) pp. 485–489, at p. 489; see also E. Jesse (supra n. 2). 84  ‘Nagelprobe für den Rechtsstaat’, Der Spiegel, 17 August 1992. 85  And the three other remaining defendants, Heinz Albrecht, former member of the Defense Council, Heinz Keßler, former Defense Minister, and former General Fritz Streletz. Defendant Willi Stoph, former Minister President was found unable to stand trial, as well as Erich Mielke, former State Security chief, due to his being currently on trial in a separate proceeding, for the murder of two policemen in 1931. 86  See Badische Zeitung, 1 December 1992. 81  82 



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to another state’s jurisdiction.87 It is also recognized that immunity for official acts generally survives the term of office. Two ex­ceptions have been advanced: the protected state’s consent and its disappearance as a subject of international law.88 Under the first exception it could be argued that the GDR’s ratifica­tion of the Unification Treaty implied the consent to forego state immunity.89 In the case against former GDR Minister President Stoph, the Bundesverfassungsgericht as well as the Bundesgerichtshof have applied the second exception, summarily rejecting his motion to dis­miss the homicide investigations against him.90 It has been argued, however, that the retroac­tivity prohibition also mandates the continuing guarantee of international law barriers to punishability existing at the time of the relevant conduct.91 The major problems in the case against Honecker derived from the defendant’s age and ill­ness. According to medical experts called at trial, the eighty year old defendant is suffering from terminal cancer of the liver and would probably not have lived to see the outcome of his trial, let alone of appellate proceedings. Was it consistent with the constitutional guarantee of human dignity to proceed with trial against a ‘dying’ defendant? Was Honecker thereby being used to set an example?92 Do the presumption of innocence, the guarantee of fair trial and the protection of human dignity foreclose trial if the court must assume it very likely that a defendant can be neither acquitted nor convicted?93 On January 12, 1993 the Landesver­fassungsgericht Berlin in one of its first cases ruled that Honecker’s continued detention con­stituted a violation of human dignity.94 Consequently the Landgericht Berlin terminated the proceedings against him, after about two months of conducting a trial which got largely en­tangled in medical questions.95 The very next day Honecker left Germany on a flight to 87  G. Gornig, ‘Die Verantwortlichkeit politischer Funktionsträger nach völkerrechtlichem Strafrecht’, NJ (1992) pp. 4–14, at p. 13; I. Seidl-Hohenveldern (supra n. 51) pp. 1483, 1497. 88  G. Gornig (supra n. 87) p. 13. 89  Suggested by J. Arnold and M. Kühl (supra n. 33) p. 992. 90  BVerfG (3rd Chamber of the Second Senate), Order of 21 February 1992, DtZ (1992) 216; BGH (supra n. 12) p. 142. 91  R. Merkel, ‘Erich Honecker gehört nicht vor das Berliner Landgericht’, Die Zeit, 28 August 1992. 92  Strong criticism has been voiced by R. Augstein, ‘Die Justiz-Farce’, Der Spiegel, 26 October 1992, arguing that ‘the Soviet satraps in East Berlin’ are really responsible (‘Honecker was about as independent from the Kreml as was Herodes the Great in Jerusalem from Emperor Augustus in Rome’). 93  According to § 206a German Criminal Procedure Code, the trial ends automatically and without judgment on the merits upon the death of the defendant; opposing ‘trials against the dying’ now see K. Lüderssen, Der Staat geht unter – Das Unrecht bleibt? Regierungskriminalität in der ehemaligen DDR (Frankfurt a. M. 1992) pp. 97 et seq. 94  VerfGH, Constitutional Court of the Land Berlin established in 1992, with jurisdiction over questions of state constitutional law. According to § 49 VerfGHG of 8 November 1990 (Law on the Constitutional Court, GVBI. 1990, 2245) the court hears constitutional complaints of persons claiming that state action constitutes a violation of rights guaranteed by the Berlin Constitution. 95  See Frankfurter Allgemeine Zeitung. 13 January 1993, p. 1.

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Chile where his family was awaiting him, leaving the German people divided over the ques­tion of whether respecting the rule of law’s procedural guarantees in his case, too, has been a deplorable surrender or else a healthy triumph of the Rechtsstaat.96

6. Criminal Sanctions: To What Avail? Considering the sentences in the first two Mauerschützen proceedings before the Landgericht Berlin, it appears that the courts have sought to soften the rather rigorously found man­slaughter responsibility via lenient sentencing. In both proceedings before the Landgericht Berlin the accusations were reduced from (attempted) manslaughter to (attempted) man­slaughter in a minor degree.97 In support, the courts pointed largely to the fact that the de­fendants were brought up in a repressive system which through its schools, mass organizations and ‘political education’ in the military had contributed to the deformation of their Rechtsbewusztsein (sense of right).98 This reduction lowered the sentencing range for manslaughter from ‘not under five years’99 to ‘six months to five years’ for manslaughter in a minor degree, with an additional reduction for attempt.100 With the exception of one de­fendant who was sentenced to a three and a half year term of imprisonment,101 the other de­fendants received sentences between one and a half and two years and were granted probation.102 In determining the individual sentences, the courts had to consider the degree of the de­fendants’ culpability. In its appellate opinion, the Bundesgerichtshof summarily accepted the Landgericht’s reasoning in Mauerschützen II. It had considered as mitigating the fact that the defendants grew up after the Berlin Wall was built, and that from their personal backgrounds they were unable to assess critically their indoctrination. Furthermore, the Court recognized that the defendants were soldiers at the ‘very bottom’ of the military hierarchy and that ‘in a certain way’ they were themselves victims of the ‘circumstances’.103 Finally, the Court shared the Landgericht’s desire for leniency because the soldiers were As the author of this article believes. § 213 German Criminal Code. 98  LG Berlin (Mauerschützen I) (supra n. 9), unpublished part IX. of opinion, at p. 184; similarly LG Berlin (Mauerschützen II) (supra n. 10), unpublished part V. of opinion, p. 63. 99  § 212 German Criminal Code. 100  According to §§ 22, 23, 49 German Criminal Code; LG Berlin (Mauerschützen I) (unpublished advance copy), p. 186. 101  See LG Berlin (supra n. 9). 102  Technically, our sanctioning system does not know a ‘sentence of probation’, but rather the suspension of a specified sentence of imprisonment for a probationary period, which the court sets between two and five years. The court may also order conditions of probation. §§ 56 et seq. German Criminal Code. 103  BGH (supra n. 12) p. 149. 96  97 



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being held criminally responsible at a time when functionaires ‘who had a greater overview and a more differen­tiated training’ had not been tried or sentenced.104 In truth, sentencing in these types of cases is fraught with difficulties: what functions does punishment serve in politically ‘tainted’ human rights cases, and what kinds of sanctions are appropriate?105 A probationary sentence, arguably, is a ‘systembound’ sanction in that it is primarily designed to resocialize the defendant.106 From this point of view, the purpose of probation becomes futile (and the sanction possibly becomes unjustifiably burdensome) when the society and its norms toward which resocialization was aimed has ceased to exist.107 But if the resocialization purpose of probation is truly moot, the only remaining benefit of a probationary sentence is the avoidance of the negative effects of imprisonment. Probation in this context actually amounts to an abstention from execution of punishment. While abstaining from punishment is a sentencing option in our present law (although very limited), mere abstaining from execution of punishment is not.108 Yet, in many cases it may be uncertain whether any of the traditional forms of punishment, especially imprisonment, can serve a legitimate penal purpose for human rights violations which are a product of norms sanctioned by a vanished political system. The justification for punishment of human rights violators based on the theory of deterrence is questionable when a need for deterrence is not discernible.109 This can be true if a political system that engaged in human BGH (supra n. 12) p. 149. On a side note, I want to point out that in the sentencing phase as well the judge ought to apply the more lenient law of the two systems; this becomes relevant, for instance, with regard to probation periods which are between two and five years under West German law and between one and three years under GDR law (§ 56a German Criminal Code, § 33 GDR Criminal Code), but also with regard to the possibility of abstention from punishment, § 25 GDR Criminal Code. 106  See W. Stree, in A. Schönke and H. Schröder, Strafgesetzbuch, Kommentar, 24th ed. (München 1991) § 56 comment 3. Whether and what other purposes of criminal policy are served by probationary sentencing appears to be controversial; see K. Lackner, Strafgesetzbuch mit Erlauterungen, 19th ed. (München 1991) § 56 comment 3. 107  This implies the issue whether the granting of probation is grounded in the reasonable expectation that the offender will not engage in any criminal conduct in the future, or else whether it is only relevant that he can be expected not to commit crimes of the kind and severity he is presently convicted of, an issue that appears to be controversial. Advancing the first view see F. Streng, Strafrechtliche Sanktionen (Stuttgart et al. 1991) p. 66; for the second view W. Stree, in A. Schönke and H. Schröder (supra n. 106) § 56 comment 15. 108  The court may choose abstention from punishment if ‘the consequences of the crime for the offender have been so severe that punishment would clearly be mistaken’, provided, however, that the offender will not have forfeited a term of imprisonment in excess of one year. § 60 German Criminal Code. 109  In Germany, the traditionally prevailing view is that no single theory succeeds to sufficiently explain the purpose of punishment and that instead a combined approach is most appropriate, uniting, in essence, ‘rehabilitation’, ‘deterrence’, and ‘retribution’. The sentencing provision in our Criminal Code § 46 lays down the basic criteria in sentencing without ultimately resolving the dispute. It does, however, establish as the basic tenet that ‘the guilt of the offender is the basis for the determination of punishment’. 104  105 

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rights viol­ations has been replaced by another system whose institutions are not likely to follow the example, as can be said of unified Germany. Another, so-called ‘positive’, general preven­tion theory seeks to justify criminal sanctions on the basis that they promote symbolic norm-­affirmation and the return to norm-acceptance.110 The problem with this theory is that on the one hand, the GDR norms need not and should no longer be affirmed, and that on the other the defendants cannot be required retroactively to accept FRG norms. Thus, the theory is plausible only if, on a higher supra-political level, it can be deemed to affirm the continuing validity of inalienable human rights. This ‘higher’ level, however, must have as its founda­tion a firm international consensus that as yet remains elusive. Applying concepts of resocialization and positive general prevention in the cases and par­ticular political circumstances in other countries may lead to different results. In light of the problems outlined above, theories that can claim more plausibility in cases of criminal human rights violations should be based on the idea of the restoration of societal peace. In Germany, concepts of Gerechtigkeit (justice) as well as Schuldausgleich (compensation of guilt) and Vergeltung (retribution), seem to subscribe to that idea in principle, and interpreted in this way may find a legitimate home under the roof of a modern, humanitarian and rational criminal law conception. The basic idea of the restoration of societal peace leads us to a two­pronged analysis: first, how should the criminal law system respond to appease the victim? Second, does appeasement of the victim suffice to restore the public peace as well? If not, what response is necessary and appropriate to appease both the victim and the general pub­lic? Compared to resocialization and norm-affirmation theories, this approach appears much less ‘system-tied’. It should therefore be better suited to the rectifying of ‘politically tainted’ human rights violations, provided that it combines concerns for the victim’s rights with fur­ther humanization of sanctions for the offender. Therefore, we should move beyond the concept of imprisonment, when ‘appeasement’ of both the victim and the public may be feasible by other means. In doing so, the value of sym­bolic punishment, achievable by declaring a particular term of imprisonment (even life im­prisonment) and then foregoing its execution, seems worthy of consideration.111 Hence, the practice of probationary sentencing in Germany should be opened up further to symbolic functions by extending the range of eligible sentences. This would allow courts to allocate guilt-adequate terms of imprisonment while retaining the possibility to grant The theory of ‘’’positive’’ general prevention’ or ‘integrative prevention’ (as opposed to ‘negative’ general prevention, or deterrence) has gained a lot of academic attention and support in recent years. Günter Jakobs and Claus Roxin have been two of its main advocates. 111  For a similar, yet even milder option see K. Lüderssen (supra n. 93) pp. 114–115, favoring the idea of a mere declaration of wrongfulness and guilt. 110 



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probation. In the Mauerschützen cases, for instance, the Landgericht might have chosen longer sentences in order to reflect the general severity of intentional homicide had it not been forced, then, to actually send the offenders to prison. Probation is now the rule for sentences of imprison­ment of up to one year, and available under ‘special circumstances’ regarding the nature of the crime and the offender’s personality for sentences of up to two years. Recent sentencing statistics evince that in practice, the courts have already begun to undo the exceptional char­acter of probationary sentencing for sentences between one and two years.112 Moreover, the idea of victim-oriented resolutions of the ‘conflict’ resulting from the com­mission of a crime has gained more attention in Germany in recent years, mainly academic, but with growing interest in practice. In the Mauerschützen cases, however, apart from pro­cedural participation as ‘collateral complainants’ the victims’ perspective has been neglected, although ‘restitution’ as a condition of probation may generally be ordered.113 This is an in­dication of the long-standing and ongoing doctrinal insecurity about the legitimate role of the ‘private’ victim within the ‘public’ criminal law. In addition, even within the academic dis­cussion of victim-orientated solutions the idea of ‘restitution’ has not received much atten­tion in the area of serious crime. Certainly, it is as yet an open question deserving of academicians’ as well as practitioners’ attention what kind of action to repair the harm done may be appropriate in particular settings of serious crime and what, if anything, can be done for the victim by the offender. Generally, provided the victim consents the offender should be given the chance to make monetary as well as non-monetary and symbolic restitution, thereby reducing and possibly even eliminat­ing the need for punishment. The recently published ‘Alternative Draft on Restitution’ which was written by a working group of German, Austrian and Swiss criminal law professors, in principle does not exclude serious crime from its proposed legislative model, making at least the (mandatory) mitigation of sentence available to the offender of serious crime if he has shown autonomous acceptance of responsibility by making voluntary restitution to a substan­tial degree. Only in rare cases of serious crime, however, is it conceivable that the type of of­fence and the degree of culpability involved may allow the offender to make full restitution so that he can even earn abstention from punishment (the Alternative

F. Streng (supra n. 107) p. 69, citing 52% in 1988, compared to 35.7% in 1985. An option opened up under §§ 395 et seq. German Criminal Procedure Code for specifically enumerated crimes; their common denominator is the protection of individual legal interests such as physical and sexual integrity, life, honor, and liberty. 112  113 

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Draft indirectly pres­umes that punishment is indispensable if guilt-adequate sentencing would yield a sentence of imprisonment of more than one year).114 In homicide cases, full restitution in a natural sense cannot be made, and the possibility is questionable even on the basis of a normative understanding.115 But at least partial restitu­tion may be available in several forms. The offender may offer monetary restitution regard­ing the surviving dependents’ claims to compensation for funeral costs, for the loss of their bread-winner or homemaker, and possibly for their own pain and suffering.116 Of course the offender can very well be overburdened by the resulting financial obligations which both from the perspective of the victim and the offender advocates for a state compensation solu­tion. But there may be non-monetary forms of making partial or symbolic ‘restitution’. The offender may take voluntary action to rectify symbolically the harm done, such as offering reconciliation, apologizing, making a gift, providing services for the victim or for the com­munity (forms of restitution included in the Alternative Draft). Depending on the specific cir­cumstances of the case additional other steps may be appropriate in helping the victim (and/or persons close to the victim) regain his or her sense of self-worth, personal security, and trust. Finally, it may be interesting to note in this context that in the late middle ages the practice of ‘expiation contracts’ between the offender and the victim’s dependents and rela­tives had its main application in manslaughter cases.117 As to any residual need for punishment, crimes committed in the name of a collapsed regime may particularly call for sanctions other than imprisonment, at least for defendants of lesser culpability. As Roht-Arriaza has suggested, in the context of criminal human rights vi­olations the loss of pension rights and other sanctions related to the official function that was abused, directly or

114  Altemativ-Entwurf Wiedergutmachung (AE-WGM) (1992) §§ 4, 5; pp. 29–30, 71. Generally, the proposed model provides for abstention from punishment or mitigation of sentence if the offender has made voluntary restitution. Abstention from punishment, however, is generally limited to cases where without restitution a sentence of not more than one year would be imposed, so that in most cases of serious crime this ‘bonus’ is not available. 115  Which the authors of the Altemativ Draft seem to adopt; Altemativ-Entwurf Wiedergutmachung (supra n. 114) p. 38. 116  Under the German Civil Code (Bürgerliches Gesetzbuch, BGB) the surviving dependents are generally entitled to compensation for the first and second, but not the third, unless they have themselves suffered injury to body or health, cf §§ 844, 845, 847 BGB. The victim’s claim to compensation for pain and suffering, however, has recently been made inheritable (Act of 3 March 1990, BGBI. I, 478). Leaving aside the criminal court’s option to honor these claims in a restitution order (as a condition of probation), the victim (or his heir) may bring them either before a civil law court or as an ‘appendix’ to the criminal proceedings, in the so-called adhesion proceeding, §§ 403 et seq. German Criminal Code, an option as yet rarely elected, however, for reasons beyond the scope of this contribution. 117  According to J.F. Battenberg, ‘Spätmittelalterliche und frühneuzeitliche Sühneverträge’ (Manuscript, lecture presented at the 29th. Deutscher Rechtshistorikertag 1992, Köln).



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indirectly, seem worthy of further consideration.118 But this is not the place to elaborate on the criteria for serious culpability or on the types of alternative sanc­tions. Suffice it to say that our general criminal sanctions presently focus on the deprivation of physical liberty and financial means and are relatively antipathetic to the deprivation of professional, political, and property rights as forms of punishment.119 However, not only the recent deliberations at the 1992 meeting of the ‘Deutscher Juristentag’,120 but also the newly introduced forfeiture of property as punishment indicate growing dissatisfaction with the traditional criminal sanctions in general.121 As to pension rights, the Unification Treaty in its chapter on ‘Employment and Social Or­der’ in fact provides that as a matter of social security law (i.e. not depending on a conviction in criminal court) ‘unjustified’ and ‘excessive’ pension benefits from ‘special’ and ‘sup­plemental’ insurance systems shall be denied or reduced, the former covering persons serv­ing the government in a special ‘service and trust’ relationship, for instance in the ‘Stasi’ or the military, the latter covering various professional groups, in particular those deemed ‘in­telligentsia’.122 In particular, pension benefits shall be reduced or denied for beneficiaries who violated the ‘principles of humanity or the rule of law’, or gravely abused their positions to their own advantage or to the detriment of others.123

118  N. Roht-Arriaza, ‘State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law’, 78 Cal. L. Rev. (1990) pp. 451–513, at p. 509. 119  As to political rights, § 45 German Criminal Code provides for the deprivation of eligibility to serve in public office, of eligibility to acquire rights in public elections, and of the right to vote. These sanctions are statutorily labelled as ‘collateral consequences’, not ‘punishment’, and thus cannot stand alone. The loss of eligibility to serve in public office and to acquire rights in public elections for five years (but not forfeiture of the right to vote) are automatic, collateral consequences (only) for offenders convicted of a felony and sentenced to imprisonment of at least one year, and the loss is coupled with the loss of rights acquired while in office. Otherwise these sanctions are at the discretion of the court if specifically provided by the law. The fact that according to prosecution statistics for 1988, courts have employed this sanction in only one case evinces our justice system’s reluctance. This sanction applied in the Mauerschützen cases (except for defendant W. who had been sentenced under juvenile law), because manslaughter is a felony even if reduced to a minor degree. 120  See e.g. H. Schöch, ‘Empfehlen sich Änderungen und Ergänzungen bei den strafrechtlichen Sanktionen ohne Freiheitsentzug?’, Gutachten C zum 59. Deutschen Juristentag, Hannover 1992. 121  § 43a StGB. 122  See P.A. Köhler, ‘Völker-, verfassungs- und sozialrechtliche Probleme bei der Überführung von DDR-Zusatz­ und Sonderversorgungssystemen in die gesetzliche Rentenversicherung’, NJ (1993) pp. 4–10, p. 5. 123  Unification Treaty (supra n. 14), App. II, Chapt. VIII, Sec. III 9.b.; P.A. Köhler (supra n. 121) p. 5. Regardless of such violations, recent social security legislation provides for the reduction of pension benefits for persons in higher government or party positions; yet another regulations that pension rights will be suspended if the beneficiary is being charged with a crime against bodily integrity or personal liberty in his or her capacity as a state official or political or societal functionary and evades prosecution by leaving the country; Art. 3 and 4 Renten-Überleitungsgesetz (RÜG), 21 July 1191 (BGBI. I, 1606).

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Whether such ‘welfare sanctions’ globally imposed on ‘system-close’ segments of society will withstand judicial scrutiny including review by the Constitutional Court remains yet to be seen. Among the pivotal questions should be whether and to what extent such sanctions are tantamount to a public judgment of personal, blameworthy wrongdoing and may there­fore represent punishment. This would make imposition of such sanctions subject to proce­dural and substantive constitutional guarantees, namely that of nulla poena sine culpa, requiring first and foremost the finding of individual criminal culpability in a fair trial re­specting the presumption of innocence.

7. Conclusion – Some Perspectives on Criminal Justice in Human Rights Cases The Mauerschützen cases in unified Germany illustrate that blaming and punishing individ­uals for human rights violations within the framework of the criminal justice system is fraught with difficulties. First, the traditional principles of criminal responsibility were de­signed to deal with conduct and the conduct-result relation where individuals act alone or in concert with a few others, but not for larger organizational structures tending to dilute the in­dividual’s personal responsibility for a particular result. Secondly, Germany’s particular his­toric situation of reunification forecloses direct scrutiny of GDR law and practice by the principles embodied in our constitution. Forced to rely on international law, we have to real­ize that there are considerable ‘grey areas’ concerning the recognition of, commitment to, and national enforcement of important human rights that ought to be beyond the reach of na­tional governments. Thirdly, not only unified Germany but successive governments in general, willing to prosecute criminal human rights violations that occurred under a former regime, will face problems regarding the prohibition of ex post facto punishment entrenched in the rule of law. Fourthly, another major problem arising in the area of criminal human rights violations relates to the question of appropriate sanctions. In the trials against the bor­der soldiers, the German courts have largely brushed these problems aside. The granting of probation to most of the convicted border soldiers is evidence of the present inadequacy of criminal sanctioning law and practice. At present, academic discussion in Germany is largely concerned with the problem of ex post facto punishment. The German Bundesgerichtshof in the Mauerschützen case found a way out without fully addressing the problem, by framing the decisive issue as one of ‘right interpretation’ of the GDR Border Law at the time of conduct. Yet it would be more straight­forward to assume that criminal prosecution of the Mauerschützen conflicts directly with the ex post facto



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prohibition, and to ask whether its protection is subject to inherent limita­tions.124 Such a limiting approach could be built on the idea that the individual’s reliance deserves strongest protection where ex ante definition of criminal conduct is at issue, but potentially lesser protection regarding the reliance on exemptions from punishment. Argu­ments in support can rely on natural law, but may in addition draw upon international law, in that there appears to be an emerging obligation under customary international law to investi­gate grave human rights violations and take action against those responsible.125 Arguably, such an obligation, including the obligation to provide redress to victims, also follows from German constitutional law in that the German Grundgesetz in its Art. 1 cl. 2 professes the German people’s respect for ‘inviolable and inalienable human rights as the basis of all human community, peace and justice in the world’. Under this approach, not all criminal human rights violations can justify overriding the ex post facto prohibition, but only cases of sufficient gravity.126 Undoubtedly, this would be the case where the violation amounts to an international crime, namely a crime against humanity. Below this level, sufficient gravity is given where human rights are being violated in reliance on laws, regulations, orders or state practice that were recognizably meant to exempt such violations from punishability. Considering the numerous problems in blaming and punishing individuals for human rights violations, are there really viable alternatives to criminal prosecution? The idea of am­nesty has not found support in Germany; in particular it is argued that there is no basis for amnesty before the allocation of criminal responsibility.127 To be sure, only many years down the line will the extent of de facto amnesties (amnesties resulting from non-prosecu­tion) be verifiable. Also, the idea of a ‘national tribunal’ and other forms of community ca­tharsis that

124  Whether the ex post facto prohibition as embodied in Art. 103 cl. 2 is subject to any ‘inherent boundaries’ analysis absent textual qualification in the Constitution itself is a pivotal issue of constitutional doctrine, but clearly beyond the scope of this article. 125  N. Roht-Arriaza (supra n. 118) pp. 489 et seq.; see also J. Kokott, ‘Völkerrechtliche Beurteilung des argentinischen Gesetzes Nr. 23.521 über die Gehorsamspflicht (obediencia debida), in ZaöRV (1987) pp. 506–536, at pp. 509 et seq. 126  At least for its conceptual starting point, the approach taken here can draw support from R. Alexy’s and M. Kriele’s comments in VVdStRL 51 (1992), pp. 131–133, defending application of the Radbruch formula on the idea that extreme and therefore evident un-law does not merit protection of the ex post facto prohibition. Furthermore, Alexy as well as Kriele distinguish between ‘general’ justification grounds and ‘special’ justification grounds, the latter being characteristic of totalitarian regimes. Both the criteria of ‘evidence’ as well as the distinction between elements of crime and general justification grounds on the one hand and ‘special’ grounds of justification or excuse on the other have been rejected by M. Herdegen, loc. cit., pp. 139–140. For an ‘open’ break with the ex post facto prohibition by way of constitutional amendment, K. Günther, ‘Comment’ StY (1993) pp. 18–24, at p. 23/24. 127  See K. Lüderssen (supra n. 93) p. 15; see also J. Limbach, in Frankfurter Allgemeine Zeitung, 20 October 1991; E. Jesse (supra n. 2) p. 24.

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have been advanced by voices from the former GDR seem to have lost their initial appeal.128 Considering the hundreds of norms that criminal laws do protect by the threat of punish­ment, it seems paradoxical that some of the gravest violations leave modem societies more or less perplexed. The prosecution of ‘little fish’ raises serious quandaries because the defini­tion of what is right or wrong as a matter of law has traditionally been within the domain of national sovereignty and national policies. The protection of universal human rights, there­fore, will always be compromisable so long as the sovereigns cannot be forced to observe them in making national law. The considerable doubts and grey areas concerning the interna­tional status of the right to the protection of life, as evidenced, for instance, in the use of fatal force against border violators must be clarified. Other examples can easily be found, such as the legality of the death penalty. Concerning the criminal responsibility of ‘big fish’, particularly leading state repre­sentatives, for grave human rights violations an international solution should be considered under a future law of nations. Then, the legitimacy of holding individuals responsible in a criminal court would be based on international legal consensus that no nation could disregard without justifying itself on the basis of specific, internationally recognized grounds. Nations would not, as is Germany today, be suspected of engaging in political self-righteousness or even Siegerjustiz (victor’s justice) and ‘political trials’ but instead could assume the role of complaining party, which seems a more fitting role than that of judge with respect to the of­fensive state practices in question. Thus, the Honecker case provides impetus to proceed with the long-deliberated establishment of an International Criminal Court.129 In the course of working out further details, the question of sanctions should merit special attention, a topic that opens new and challenging fields for academics as well as practitioners.130 128  Some contend that they are questionable under the rule of law, at least if their purpose ultimately amounts to an allocation of individual criminal responsibility. See K. Lüderssen (supra n. 93) pp. 129 et seq.; see also the sharp criticism by H. Prantl, ‘Tribunal! Tribunal?’, Süddeutsche Zeitung, 6 December 1991; favoring the idea of ‘public forum’ see R. Schröder, ‘Gesinnungsjustiz ist Unrecht’, Die Zeit, 6 December 1991; see also M. Ch. Bassiouni and Ch. L. Blakesley, ‘The Need for an International Criminal Court in the New Transnational World Order’, 25 Vanderbilt J. ofTransnational L (1992) 151, at p. 173. 129  See M. Ch. Bassiouni, International Criminal Law, Vol. III, Enforcement (1987) pp. 181 et seq. and M. Ch. Bassiouni, ‘Chronology of Efforts to Establish an International Criminal Court’, in Draft Statute International Criminal Tribunal, 9 Nouvelles Études Pénales (1992) pp. 29 et seq. 130  Cf. Draft Statute International Criminal Tribunal, 9 Nouvelles Etudes Nnales (1992) Art. XXI., pp. 86–87, providing for these ‘penalties’: ‘(i) Deprivation of liberty or any lesser measures of control where the person found guilty is a natural person; and (ii) Fine to be levied against a natural person, organization, or State; and (iii) Confiscation of the proceeds of proscribed (or criminal) conduct.’ The Draft Statute further provides for ‘sanctions’, which are: ‘(i) Injunctions against natural persons or legal entity restricting them from engaging in certain conduct or activities; and (ii) Order restitution and provide for damages.’



problems in blaming and punishing individuals

German Abbreviations BGH

Bundesgerichtshof

BGBI

Bundesgesetzblatt

BGHSt

Entscheidungen des Bundesgerichtshofs in Strafsachen

BVerfG

Bundesverfassungsgericht

BVerGE

Entscheidungen des Bundesverfassungsgerichts

DtZ

Deutsch-deutsche Rechts-Zeitschrift

EuGRZ

Europäische Grundrechte Zeitschrift

GA

Goltdammers’ Archiv

GDR

German Democratic Republic

JuS

Juristische Schulung

JZ

Juristenzeitung

KritJ

Kritische Justiz

LG

Landgericht

NJ

Neue Justiz

NStZ

Neue Zeitschrift für Strafrecht

SJZ

Süddeutsche Juristenzeitung

StGB

Strafgesetzbuch

StPO

Strafprozeßordnung

StV

Strafverteidiger

UZwG

Gesetz über den unmittelbaren Zwang bei Ausübung öffentlicher Gewalt durch Vollzugsbeamte des Bundes

VVdStRL

Veröffentlichungen der Vereinigung deutscher Staatsrechtslehrer

WStG

Wehrstrafgesetzbuch

353

Regime Change, State Crime and Transitional Justice: A Criminal Law Retrospective Concentrating on Former Eastern bloc Countries1 Jörg Arnold 2, a in collaboration with Emily Silverman b a

Max Planck Institute for Foreign and International Criminal Law, Freiburg, Ger­many Humboldt University, Berlin, Germany b Guest Scholar, Max Planck Institute for Foreign and Inter­national Criminal Law, Freiburg, Germany

1. Political Systems and State Crime 1.1. ‘Coming to Terms with’ and ‘Working through’ the Past Since the fall of the Berlin Wall, the need to ‘overcome’ or to ‘work through’ the past (Ver­gangenheitsbewältigung or Vergangenheitsaufarbeitung), particularly the legacy of the Ger­man Democratic Republic (GDR), has dominated the discussion in Germany. This is not the place to analyse the German words used to describe this process of coming to terms with the past. Suffice it to say that the juxtaposition of the word for the past, Vergangenheit, with words like Bewältigung (overcoming, coming to grips with) and ‘Aufarbeitung’ (working through) implies a purely technical procedure, as if the past could in some way bc mastered, surmounted, vanquished or conquered. The reality is in fact quite different. The task at hand is to account for the deeds of a fallen dictatorship. With regard to the GDR, doing so involves the critical examination of four sep­arate areas: the political-historical, the legal-historical, the debate carried out in the public arena, and the purely legal, which itself can be subdivided into a critical examination of the past using the law, on the one

Translated from the German by Emily Silverman. The author acknowledges his gratitude to Rechtsassessor Fred Muench. Research Assistant at the Max Planck Institute for Foreign and International Criminal Law for footnote review. 1  2 

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hand, and the creation of a new legal system, on the other.3 These areas have in common that they are all a part of the transformation, or transition, of the old society into the new.4 In other words, transformation can only take place if the society as a whole engages in critical examination of the past.5 This is particularly true for attempts to confront the past by exclusively legal means and is not limited to a discussion of the le­gacy of the GDR. For since the collapse of an entire social system, namely dictatorial com­munism in Middle, Eastern and Southern Europe, the rule of law in the successor countries ­often still in its infancy – has been confronted with a variety of challenges, not the least of which is a drastic increase in crime in the aftermath of the political change.6 This paper will not address the transformational problems arising from ‘common’ crime and criminality, however, but rather will address another issue facing the criminal justice sys­tems in countries that have experienced social upheaval, namely, how to deal with political crimes – especially with so-called state-promoted, state-supported or, more simply, state crimes (staatsverstärkte Kriminalität) 7 – that were committed before the regime change, but were not prosecuted at that time, primarily for system-related reasons. This, too, shows that criminal law, in particular, is an especially sensitive device with which to measure the com­mitment of the new regime to the rule of law in its efforts to deal with the past. 1.2. Regime Change These problems, to be sure, are not limited to countries that have to deal with the legacy of a communist state; they are also experienced in Western European, Latin American, African and Asian countries that have experienced a ‘classical’ political change in which a dictator­ship was replaced by a democracy.8 3  On this point, see references by J. Arnold, ‘Thesen zur DDR-Forschung seit 1989’, in U. Baumann, H. Kury, eds, Opfer von SED-Unrecht (Freiburg 1998, in press). 4  For a more general discussion of the theory of transformation. see, e.g., G. Brunner, ed., Politische und ökono­mische Transformation in Osteuropa (Berlin 1996); B. Hodenius and G. Schmidt, eds., ‘Transformationspro­zesse in Mittelost-Europa’. Sonderheft, 4 Soziologische Revue (1996); R. Hofmann, J. Marko, F. Merli and E. Wiederin, eds., Rechtsstaatlichkeit in Europa (Heidelberg 1996). 5  See, e.g., P. Steinbach, ‘Vergangenheitsbewältigungen in vergleichender Perspektive’, in Historische Kommission zu Berlin; idem., ed., Informationen, Beiheft Nr. 18 (Berlin 1993). See also B. Rüthers, Die Wende-Ex­perten – Zur Ideologieanfälligkeit geistiger Berufe am Beispiel der Juristen (München 1995), 2nd ed. (completely reworked and expanded edition of the book Ideologie und Recht im Systemwechsel). 6  On this point see, e.g., U. Ewald, Kulturvergleichende Kriminalitätsforschung und sozialer Wandel im Mittel­- und Osteuropa (Bonn 1996); K. Boers, 2 Soziale Probleme (1995) pp. 153 ff. 7  See W. Naucke, Die strafjuristische Privilegierung staatsverstärkter Kriminalität (Frankfurt a.M. 1996). Simi­lar concepts include ‘political crime’ (politische Kriminalität) ‘political system crime’ (politische Systemkrimi­nalität), political Unrecht (politisches Unrecht). 8  On this point, see, e.g., N. Roth-Arriaza. ed., Impunity and Human Rights in International Law and Practice (New York, Oxford 1995).



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A ‘classical’ change takes place when a totalitarian or authoritarian system is succeeded by a democratic, or at least politically liberal, pluralistic system. This does not mean, however, that states that respect human lights are necessarily and exclusively democracies9 or that every system that calls itself democratic is an uncom­promising champion of human rights. Notwithstanding these problems, the approach taken in this paper is based on the socio­logical theory of system change developed on the basis of at least four waves of democratiza­tion that occurred in this century, namely, after 1918, after 1945, in the 1970s and after 1989.10 Of these, the upheaval in the countries of Eastern Europe in 1989 is considered to be especially profound, as it involved the collapse of an entire bloc.11 Nevertheless, it must be recognized that the transition from one political system to another differs from country to country in that the developments leading up to the change are as unique as are the results of the change. Also, the displaced systems can be characterized by a number of different politi­cal categories (e.g., totalitarianism, fascism, national socialism, communism, socialism, mili­tary dictatorship, civil dictatorship).12 Other aspects not to be overlooked are the difficulty of determining the precise moment of a political transition or change and the fact that a particu­lar system may change its form more than once. In addition, regime changes are not limited to the ‘classical’ form, in which a dictatorship is replaced by a democracy, but can exhibit a ‘mixed’ form as well, a sort of continuous transition. Certain reform developments in China, for example, fall in this category as does the ‘de-Stalinization’ of Eastern European countries in the 1950s. This category also includes the reform of the varied forms of undemocratic, re­strictive socialism in Eastern Europe as well as the changes in political leadership in Western democracies (such as Italy) that resulted in qualitative changes in political conditions. In con­trast, political developments in the opposite direction, i.e., the replacement of a democracy by a dictatorship, are not part of this view of system change, at least not with regard to the role of the criminal law in coming to terms with the past. 1.3. Criminological Phenomena Inspired by the discussion surrounding the role of law in coming to terms with the past fol­lowing the regime changes in Eastern Europe, similar issues with regard to how society deals with the past have arisen in countries outside of On this point, see E.-W. Böckenförde. Frankfurter Allgemeine Zeitung (2 May 1996) p. N6. On this subject. see K. von Beyme. Systemwechsel in Osteuropa (Frankfurt a.M. 1994). 11  On this point, see, e.g., B. Ackermann. Ein neuer Anfang für Europa (Berlin 1993); T. Rosenberg, Die Rache der Geschichte (Munich, Vienna 1997). 12  On this point, see, e.g., H. Maier. ed., ‘Totalitarismus’ und ‘Politische Religionen’. Konzepte des Diktaturver­gleichs (Paderborn (etc.) 1996). See also K. von Beyme, Vom Faschismus zur Entwicklungsdiktatur-Machtelite und Opposition in Spanien (Munich 1971), pp. 13 ff., pp. 22 ff. 9 

10 

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Eastern Europe in which a totalitarian, non­communist state was succeeded by a democratic political system. This indicates that the sub­ject is of global interest both from the criminological as well as from the criminal law perspective: Concepts like ‘criminality of the powerful’ (Kriminalität der Mächtigen)13 and ‘macro-crime’ (Makrokriminalität)14 are simply different ways of saying the same thing. Al­though prosecution of such crimes is only possible after the collapse of the totalitarian sys­tem – assuming, of course, that prosecution according to (developing) international law is not yet a viable option – actual criminal liability is incurred at the time the crime is committed, i.e., prior to that collapse. The commission of such crimes is, of course, by no means limited to totalitarian systems. Macro-crime is a criminological phenomenon not restricted to politi­cally repressive regimes: it may be observed in a broad spectrum of political systems.15 It manifests itself differently in each system – displaying qualitative, quantitative as well as his­torical differences – and is especially significant in dictatorships. Macro-crime includes de­struction of entire ethnic groups, deportation, mass murder, killing of individuals, apartheid and other forms of discrimination, abduction, disappearance, kidnapping, rape, death penalty without trial, border shooting, high treason, torture and abuse in prison, duress, extortion and threats, arbitrary incarceration and arbitrary terms of incarceration, perversion of the course of justice, election fraud, political denunciation, violation of the confidentiality of mail and telecommunications, spying, domestic secret services criminality, police misconduct, com­pulsory expropriation, politically motivated economic crime, corruption and bribery and dop­ing.

2. Methodological Issues It is easier to address these global issues scientifically in a study that is limited to the pros­ecution after regime change of crime supported by the predecessor state. The methodological explanation for this is that the necessary access to relevant legal materials is much directer under these circumstances than it would be in the case of crimes that continue to enjoy the protection of the state or crimes that are committed with tacit state approval. Are political crimes and state crimes being prosecuted and punished after the regime change, or are these efforts being thwarted by fundamental principles of the rule of law and various legal institutions? Are the interests of the victims of political crime being considered? And finally, to what extent must supranational law rather than national criminal law be in­voked in order to prosecute political crime and crime protected by fallen political systems? 13  14  15 

See G. Kaiser. Kriminologie. Ein Lehrbuch (Heidelberg 1996), 3rd ed., pp. 420 ff. See H. Jäger. Makrokriminalität (Frankfurt a.M. 1989). On this subject, see Ch. Lee, I Soziale Probleme (1995), pp. 24 ff.



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These kinds of questions – questions that can only be answered with the help of a com­parative legal analysis of how the criminal law has been used to account for the past follow­ing a regime change – are directly relevant to future policy-making decisions. Hopefully, insights derived from the study will inspire decisions conducive to preventing and fighting the phenomenon of political crime in the future. Especially important are policy decisions with regard to legal developments at the national or international level that would ensure the prosecution of state-promoted crime after regime changes without at the same time making reconciliation impossible. Seen in this light, the goals of the project conducted by the Max Planck Institute for Foreign and International Criminal Law and supported by the Volkswagen Foundation are, firstly, to determine how the law (particularly the criminal law) responds to acts of state-sup­ported crime, particularly state crime committed in the former Eastern bloc countries before the regime changes in 1989. Additional goals are to ascertain whether and to what extent the various countries have employed different models in dealing with past state crime and finally to determine the extent to which this kind of crime can be prevented in the future.16 At this point, a critical methodological problem must be mentioned. Since the emphasis of the Max Planck Institute study is on the use of the criminal law in coming to terms with the past after the collapse of communism in Eastern Europe, the perspective taken is necessarily limited in time as well as politically and regionally. Issues concerning the role of criminal law after the political changes of 1918 and 1945 will not be addressed, nor will a comparative longitudinal analysis of political changes occurring in non-communist systems be under­taken. Political crime in democracies will not be considered, nor will it be considered in existing totalitarian and authoritarian systems. As a result, few general statements applicable, say, to a global topic such as ‘state-promoted crime of 20th century political systems’ can be expected to emerge from the study. Such statements may, of course, be derived in the future, should additional research with a broader emphasis be conducted. The rest of this paper is based primarily on initial results of the study that are closely asso­ciated with efforts to describe identifiable models of using criminal law to work through the past; at this time it is still too early to speak of models 16  Up to this time, the following countries and authors have been selected to participate in the project. From Eu­rope: Belarus (Khomich), Bulgaria (Filtschew/Gruew), the Czech Republic (Crha/Pipek), Estonia (Sootak/Saar), Georgia (Gamkrelidse), Germany/GDR (Arnold), Greece (Kareklas/Papacharalambous), Hun­gary (Udvaros), Lithuania (Piesliakas), Poland (Weigend/ Zoll), Portugal (Hünerfeld), Russia (Obidina), Slova­kia (Ivor) and Spain (Perez del Valle). From Latin America: Argentina (Sancinelli), Chile (Bustos) and Uruguay (Fernandez). From Africa: Ghana (Vukor-Quarshie), Mali (Afande), South Africa (Huber). From Asia: China (Richter) and Korea (Cho).

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with clear outlines. Before turning to these models, however, it makes sense to look more closely at the actual circumstances sur­rounding individual regime changes, especially the changes that took place in former Eastern bloc countries, in order to show that state-promoted crime takes place under concrete histori­ cal, political and temporal conditions. In the interest of a more comprehensive approach, the Eastern European perspective will be expanded to the extent that the retrospective portion of the paper will examine the transformation of selected non-communist systems. Meanwhile it must be clear from the start that even with this expansion the requirements of a comparative ­systematic study, such as might be undertaken by political scientists, are not satisfied.17 Still, the inclusion of even a few regimes that have succeeded non-communist dictatorships affords the opportunity to make valuable comparisons. The starting point of the study, with its focus on the former Eastern bloc, encourages direct comparison and contrast of communism with non-communist dictatorships. Comparisons will be made primarily on an inter-societal level; due to the unsystematic inclusion of regime changes in non-communist countries, intra-so­cietal comparison is impossible.18 As a result, the validity of these comparisons from the per­spective of a political scientist may be limited. They may, however, produce some valuable insights that can be used to help determine just how effective the use of the criminal law has been in the process of coming to terms with the past.

3. Retrospective and Transformation of Political Systems 3.1. Communist Dictatorships in Eastern Europe In Eastern Europe, questions that have arisen in the aftermath of the regime changes in 1989 have concentrated on political events that occurred during the immediately preceding forty years of communist rule and not on incidents of the more distant past, even though in some cases those past incidents also took place under a totalitarian regime. An important aspect of the discussion of these questions is that the various communist dictatorships are considered to have been indistinguishable from the Soviet, or Russian, system. This is especially true in the Baltic states. There, political Unrecht committed in the name of communism is attributed to the Russian occupation. Things are viewed somewhat differently in the Czech Republic and in Hungary, where the discussion of state-promoted crime directly traceable to the So­viets is generally in the context of the largely See W. Merkel, ed., Systemwechsel I. Theorien, Ansätze und Konzepte der Transitionsforschung (Opladen 1996), 2nd ed.; W. Merkel, E. Sandschneider and D. Segert, eds., Systemwechsel 2. Die Institutionalisierung der Demokratie (Opladen 1996); W. Merkel and E. Sandschneider, eds., Systemwechsel 3. Parteien im Transformationsprozeß (Opladen 1997). 18  For detailed treatment, see W. Merkel, op. cit.; W. Merkel, E. Sandschneider and D. Segert, op. cit. 17 



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Soviet-initiated put downs of the communist re­form movement’s uprisings in Hungary in 1956 and during the ‘Prague Spring’ in 1968. The situation is similar in Poland as well, at least with regard to the suppression of the riots at the Lenin shipyard in Gdansk in 1970; the degree to which the imposition of martial law in 1981 was instrumental in preventing a Soviet invasion, however, is disputed. As for Germany, the only state crime committed in the GDR that is attributed to Soviet dictates is the use of force to put down the uprising of 17 June 1953. In Russia itself, crime attributed to the Soviet sys­tem encompasses state-supported crimes dating back to the seizure of power by the Bol­sheviks in 1917 as well as Stalinist crimes. The so-called de-Stalinization, which took place in quite a few Eastern European countries plays a significant role in the historical process of working through the communist past. It refers to a relatively short period of liberalisation of the communist system that was inaugur­ated by Khrushchev’s secret speech at the Twentieth Communist Party Congress in 1956, in which his criticism of the Stalinist system was secondary to his denunciation of Stalin’s crimes. Legal consequences of this liberalisation were isolated criminal prosecutions – in the former Soviet Union, for example, the prosecution of the chief of the KGB, the notorious Beria – as well as the rehabilitation of some of the victims of Stalinism. From a political-historical as well as legal point of view, it is important to recognize at this point that the establishment of communist dictatorships, with their Russian roots, is seen in these countries as having a direct connection to state-promoted crime. This assessment is par­ticularly compatible with a universal concept of natural law.19 A greatly simplified explana­tion follows: In that the Communists abrogated civil and political rights after seizing power in 1917, political Unrecht first became possible with the introduction of communism. This possibility was not, however, due solely to the seizure of power at the time of the October Revolution but rather was due in part to the fact that the Communist Party, once its power was estab­lished, engaged in a concerted effort to perpetuate itself, to which end it nullified the regula­tory aspect of the law.20 In the following years, a prototype Soviet law developed, including a Soviet 19  For treatment of the discussion on natural law, see, e.g., G. Grünwald, Zur Kritik der Lehre vom uberpositiven Recht (Bonn 1971); A. Kaufmann, ‘Die Naturrechtsdiskussion in der Rechtsund Staatsphilosophie der Nach­kriegszeit’ B 33/91 Aus Politik und Zeitgeschichte, Beilage zur Wochenzeitung Das Parliament (9 August 1991); K. Kühl, ‘Kontinuitäten und Diskontinuitäten im Naturrechtsdenken des 20. Jahrhunderts’, in K. Acham, K.W. Nörr and B. Schefold, eds., Erkenninisgewinne, Erkenntnisverluste (Stuttgart 1998) pp. 605 ff. 20  To be sure, one should avoid hasty conclusions such as that this statement regarding the political roots of com­munist Unrecht implies that the character and degree of political wrongdoing in non-communist dictatorships is somehow less serious. It is completely inappropriate to minimize the crimes of the Nazi-German dictatorship, not least in their magnitude and in their effects on the countries of Eastern Europe (on this point, see, e.g., I. Sotelo, ‘Vergangenheitsbewältigung: Spanien – ein unpassendes Beispiel’, in K. Sühl, ed., Vergangenheitsbe­wältigung 1945 und 1989.

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criminal law, that, under the guise of the application of legal means, could be ex­ploited to help maintain power.21 With the exception, perhaps, of the GDR, no similar course of legal development can be identified in the communist systems of Eastern Europe, whose establishment in the aftermath of World War II was due for the most part to the influence of the Soviet Union. The (criminal) justice systems in countries like Poland, Czechoslovakia and Hungary, for example, retained various normative elements of pre-communist (criminal) law. Of course these laws were then subject to interpretation according to the communist party line, which meant that an act was deemed criminal only if it was considered ‘dangerous to society’ (gesellschaftsgefährlich), a largely discretionary concept.22 Also worthy of men­tion in this context is the degree to which the judges and prosecutors in the various commun­ist countries of Eastern Europe were required to identify with the ruling party. Whereas the Soviet Union and the GDR required virtually complete identification, i.e., party membership, this was not necessary in Poland, Hungary and Czechoslovakia. This does not mean, how­ever, that the face of justice in these countries was shaped to any significant degree by regime-critical jurists. Finally, an important aspect of the political change in Eastern Europe can be seen in the legal transformation of the fallen system into the new society. The establishment of a demo­cratic Rechtsstaat is a goal of practically all these countries. In the meantime, this goal has found expression in a wealth of new legislative measures, including new constitutions and new criminal codes and codes of criminal procedure. With the exception of the development of the rule of law in the former GDR (today the five so-called new states of the Federal Re­public of Germany) the jurists who have been instrumental in setting up and shaping the new democracies are the same jurists who were active in the old systems. Whereas unified Ger­many has retained no more than approximately 30 to 40 per cent of the judges and prosecu­tors from the former GDR, most of the successor countries in Eastern Europe filled only the highest leadership positions with jurists who had not been active in the legal system of the former communist state. All other judges and prosecutors who are part of the new legal sys­tem participated in the old legal system as well. This development is Ein unmöglicher Vergleich? (Berlin 1994) pp. 44 ff. On this subject as a whole, see the discussion surrounding the ‘Black Book of Communism’ – St. Courtois, N. Werth, J.-L. Panné, A. Pacz­kowski, K. Bartosek and J.-L. Margolin, Le livre noir du communisme (Paris 1997), for example, articles by Briancon, de Gaudemar and Allouche, Frankfurter Allgemeine Zeitung (13 Nov. 1997) p. 41, Frankfurter All­gemeine Zeitung (26 Nov. 1997) pp. 10 f., Frankfurter Allgemeine Zeitung (10 Dec. 1997) p. 43, Libération – le quotidien (11 Nov. 1997). 21  On the subject as a whole, see U. Schittenhelm, Strafe und Sanktionssystem im sowjetischen Recht (Freiburg 1994). 22  On this point, see, e.g., I. Bekes, ‘Voraussetzungen einer modernen Strafgesetzgebung aus ungarischer Sicht’, in A. Eser, G. Kaiser and E. Weigend, eds., Von totalitärem zu rechtsstaatlichem Strafrecht (Freiburg 1993) pp. 135 ff., pp. 142 ff.



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even more apparent in the law faculties of the successor countries. Whereas law schools in the five new states of the Federal Republic have retained practically no scholars from the GDR on their faculties, the situation of the law faculties in the successor countries of the other former communist sys­tems is very different. There, the vast majority of scholars from the communist era (except, of course, for those who have reached the age of retirement) have kept their positions. 3.2. China In an examination of the history of communism, the unusual path taken by the People’s Re­public of China cannot be ignored. Unlike the developments in Eastern bloc countries, com­munism in China was not set up directly under the influence and domination of the Soviet Union. Although not entirely free of Soviet pressure, especially with regard to its ideology, the seizure of power by the Communist Party in China, that is, the establishment of a new political order in 1949, was primarily the result of years of civil war and intra-Chinese power struggles. In the following years, communism in China was repeatedly revised and re­vamped. Although based on Marxist-Leninism and Stalinism, the practice of communism and the commission of communist crimes in China – unlike in the non-Soviet communist countries of Eastern European – were indelibly influenced by a small number of politically powerful people within the country, like Mao Zedong. Although the importance accorded in­dividual figures in China is indistinguishable from the cult of personality in the Soviet Union, the political developments in China, unlike those in the USSR and other communist countries of Eastern Europe, do not add up to an example of a classical regime change. Rather, at least since Deng Xiaoping’s rejection of Mao’s Cultural Revolution, one result of which was the liquidation of a large portion of the Chinese intelligentsia, Chinese Communism has been concerned with consolidating the economic developments in China and establishing a ‘so­cialist’ market economy, Traces of ‘de-Maoification’ can be detected here, although Maoist ideology has never been expressly and completely renounced. It remains to be seen to what extent a democratization of the political system will follow and how the Chinese communist past will fare under these conditions. The ‘de-Maoification’ has already lead to one use of the criminal law in an attempt to account for past events, espe­cially the Cultural Revolution, namely the trial of the so-called Gang of Four after Mao Ze­dong’s death. In addition, according to official sources, more than 2.4 million unjust convictions dating from 1949–1976 have been set aside.

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jörg arnold 3.3. A Comparison of Communist and Non-communist Dictatorships

A selective comparison of past events in various non-communist systems outside of Europe that have experienced a classical regime change with the developments in former Eastern bloc countries – disregarding the non-communist dictatorships that preceded communism in some of these countries23 – yields the following grossly simplified conclusions. In several Latin American, Western European, African and Asian countries (e.g., Argen­tina, Chile, Ghana, Greece, Korea, Mali and Spain), the political transition from dictatorship to democracy entailed the replacement of a military dictatorship by a civil government that followed a democratic path. Not infrequently, however, these countries had previously ex­perienced political fluctuations both in the dictatorship-democracy direction as well as vice versa. In other words, in one and the same country political changes have ebbed and flowed. However, if we were to conduct a comparative longitudinal analysis of the democratization process in Africa, i.e. if we were to examine a significantly greater number of African coun­tries, we would have to concede a certain uniformity in the collapse of African dictatorships since 1989.24 In contrast, the fall of Eastern European communist dictatorships – despite the great dif­f erences both in the development of communism in each individual country as well as in the concrete developments leading to its collapse – was at its core an implosion, or collapse, of an entire society and was influenced to a great extent by the breakdown of the Soviet Union. This does not mean, however, that the demise of the entire communist system can be at­tributed solely to the demise of the Soviet Union.25 In other words, the supposition is not entirely unsubstantiated that certain regime changes in Latin America, Western Europe and Africa exhibited ‘continuing discontinuity’ whereas the fall of communist dictatorships in Eastern Europe was marked by ‘discontinuing disconti­nuity’. Also to be considered are additional intra-systemic convergences and divergences dis­cernible after an individual system has undergone a political change. Thus, in several countries in Latin America (e.g. Argentina and Chile), Asia (Korea) and Africa (Ghana), military dictatorships not infrequently appeared – at least at first glance – to dissolve them­selves and to allow free elections to take place. To be sure, this statement does not reflect the political and economic factors, both domestic and foreign, that affected the development of dictatorships (including related 23  On this point see, e.g., K.D. Bracher, ‘Nationalsozialismus, Faschismus und autoritäre Regime’, in H. Maier, ed., Totalitarianismus und Politische Religionen. Konzepte des Diktaturvergleichs (Paderborn (etc.) 1996) pp. 357 ff. 24  For thorough treatment of this point, see S. Schmidt, ‘Demokratisierung in Afrika: Fragestellungen, Ansätze und Analysen’, in Wolfgang Merkel, op. cit., pp. 229 ff. 25  See also M. Brie and E. Böhlke, Rußland wieder im Dunkeln (Berlin 1992) p. 11.



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historical aspects of colonialism and the independence, oppo­sition and peace movements) that contributed to such steps. Nevertheless, convergences of the developing democracy with the dictatorial past become clearer if one considers the fact that some of the representatives of the various dictatorships retained their leadership roles in the successor democracies (e.g. Chile, Ghana) or prior to the regime change chose a succes­sor (or a co-leader) who went on to lead the fledgling democracy (Argentina, Spain). The regime change progressed differently in for example Portugal, where members of the military opposition paved the way for democracy by means of an unbloody coup, a velvet or ‘carna­tion’ revolution (Nelkenrevolution); in Greece, where a new civil government was installed in response to efforts undertaken by opposition military; and in Mali, where leading military officials staged a coup against the military dictatorship. If from the point of reference chosen here one compares the regime changes in non-com­munist countries with the regime changes in formerly communist dictatorships, it can be as­certained that, except for the aforementioned examples of Portugal, Greece and Mali, the change in Eastern Europe in some ways presents a somewhat different picture. Although some representatives of the former dictatorships are representatives of today’s democracies, especially in countries of the former Soviet Union, the circumstances do not support the same kind of claim of self-dissolution of dictatorship undertaken by the current democratic repre­sentatives such as can be made in certain countries in Latin America, Western Europe and Africa. One reason for this is that the typical Eastern European countries were comparatively uniform, Soviet-influenced communist dictatorships whose collapse and transition to democ­racy are characterized by divergence. It is perhaps not a coincidence that communism has not yet collapsed in places like China and Cuba, countries that do not necessarily follow the So­viet model, are not under Soviet hegemony and were established more or less under their own steam. South Africa is not part of the wave of transitions from dictatorship to democracy that took place in Latin American, African and Asian countries. In South Africa an attempt was made to overcome the decades-old system of apartheid by means of a political transition in­troduced in 1990 by President de Klerk, who originally came to power as a representative of the apartheid system. This move was preceded by bitter anti-apartheid resistance on the part of the African National Congress (ANC), the perception of more and more whites, primarily members of the business community, that the urgently needed economic consolidation could only be achieved by means of a revised political agenda, and by the influence of the end of the East-West conflict on the willingness of the apartheid regime on one hand and the ANC on the other

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to engage in dialogue and compromise.26 From the first free elections in 1994 the ANC emerged victorious. As far as the development of the law following regime changes from noncommunist dic­tatorships to democracies is concerned, it seems (contingent, of course, upon further investi­gation) that – except for renewal of the constitution – fundamental continuity is the rule, at least in the area of criminal law, which in such countries has not undergone reform. This con­tinuity, too, is a not insignificant deviation from the transformation of fallen communist legal systems into rule-of-law democracies.

4. Various Ways of Using the Criminal Law to Account for Past Events 4.1. Reparation: Rehabilitation and Compensation Reparation, i.e. criminal rehabilitation and compensation of victims occupies a prominent po­sition in a great many Eastern European countries, although the intensity with which it is pur­sued varies greatly. The following conditions may, to a greater or lesser extent, help to account for these differences: magnitude of injustice, ability to provide material compensa­tion and, not to be underestimated, the political and public will to provide reparation. Simply from looking at the prerequisites for reparation contained in postregime-change legislation, it is not difficult to ascertain that rehabilitation in Belarus, Bulgaria, the Czech Republic, Germany, Hungary, Lithuania, Poland and Russia is rather broad. In Germany, Poland and the Czech Republic the laws governing rehabilitation include an extensive catalogue of offenses which often served as the basis of political convictions; measures of both rehabilitation and compensation are coupled with these offenses. In Poland, two groups are most important: first, the annulment of convictions for offenses committed before December, 1956, involving opposition of one kind or another to the establishment and preservation of the communist system; and second, the annulment of convictions for offenses involving participation in the democratic opposition committed after martial law was im­posed in 1981 and in the years immediately prior to the political change in 1989. In Hungary, three laws were passed nullifying illegal convictions and convictions for certain crimes against the state and the public order. A law was also passed providing for compensation for loss of life and loss of freedom as well as for property loss, i.e. for unjust damages inflicted by the 26  On this point, see R. Wilke-Launer and W. Kühne, ‘Südafrika’, in D. Nohlen and F. Nuscheler, eds., Handbuch der Dritten Welt 5. Ostafrika und Südafrika (Bonn 1993), 3rd edition, pp. 417 ff., pp. 448 ff.



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state upon the property of citizens. In addition to laws similar to these, Lithuania has also provided for the rehabilitation of Lithuanian citizens who were deported after 1941. Since 1990, Russia too has enacted several provisions whose goal is to rehabilitate all victims of political repressions on Russian territory since 1917, i.e., to restore their civil rights and to provide compensation for material and moral harm that resulted from arbitrary rule. In Bul­garia, rehabilitation is decided upon by the Supreme Court. Such decisions are based on pro­visions of the code of criminal procedure that regulate the annulment of judgments in general. Like in the aforementioned countries, however, material compensation in Bulgaria is regulated by laws specifically enacted for that purpose. In contrast, there are very few Eastern European countries who have as of yet paid scant attention to rehabilitation and compensation. Among these is Georgia. But in Georgia, the basis for rehabilitation, passed during the Soviet era of glasnost and perestroika, is appar­ently still valid. Our findings indicate that efforts in countries of Western Europe, Africa, Latin America and Asia to rehabilitate and compensate victims of political repression are not comparable in intensity to efforts undertaken in Eastern Europe. However, some material compensation of victims or their families took place in Argentina, and in Greece, people who were convicted during the dictatorship of activities critical of the regime were rehabilitated. Finally, material compensation has been attempted in Mali and Korea, and in South Africa both rehabilitation and compensation have been pursued. 4.2. Combination of Rehabilitation and/or Compensation with Criminal Prosecution In addition to rehabilitation and compensation, a number of Eastern European countries have also made efforts actually to prosecute people suspected of having committed offenses prior to the regime change. In countries that have done so, such as Poland, the Czech Republic, Hungary and Lithuania, criminal prosecution has been limited primarily to a very few, par­ticularly serious offenses committed during specific periods of the displaced communist regimes. In Hungary and Lithuania, prosecutions are primarily for crimes committed during the Stalinist era, from the 1940s to the 1960s; prosecutions in Hungary concentrate on offenses connected with the brutal suppression of the revolution and struggle for independence in Oc­tober, 1956. Since independence in 1990, prosecutions in Lithuania have concentrated on cer­tain homicides as well as torture committed primarily in connection with the mass deportation of Lithuanians that began in 1941 and continued after the war from 1945 to 1952. In Poland, criminal prosecution has focussed on Stalinist crimes committed prior to 31 De­cember 1956, on the determination of whether the state bears

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criminal responsibility for the shooting of shipyard workers in Gdansk during the unrest in 1970 and on events connected with the imposition of martial law in 1981. In the Czech Republic, legal prerequisites were established, for example, in the largely declaratory ‘Act Regarding the Illegality of the Com­munist Regime and the Resistance Against this Regime’ for the prosecution of Stalinist crimes committed between 1948 and 1956, crimes of misuse of political function for personal gain (or to benefit the Party) that took place prior to 1990, crimes associated with the re­pression and persecution of the opposition movement, ‘Charter 77’ as well as offenses com­mitted in support of the Soviet invasion in 1968. As yet, however, only a very few members of the State Security Police, former State and Party functionaries, prosecutors, judges and prison guards have actually been prosecuted. 4.3. Germany At first glance, Germany appears to have taken the same path followed by many Eastern Eu­ropean countries, in which reparation and prosecution are combined. A closer look, however, reveals that the Germany, unlike the Eastern European countries described above, has not limited criminal prosecution to enumerated acts stemming from specified historical periods of repression and political persecution. Instead, its criminal investigations can be charac­terized as (comparatively) expansive. The actual effect of these investigations, however, has been limited. Of the more than 20,000 preliminary investigations conducted by 31 March 1997, charges were filed in only 403 cases (2 per cent); final judgments of conviction have been reached in only 113 cases (approximately 0.5 per cent). Convictions were reached pri­marily in cases involving shootings on the German-German border, perversions of the course of justice committed by judges and prosecutors, injustices committed by the Ministry of Na­tional Security and spying and certain economic crimes committed by GDR State and Party functionaries. In the 403 cases in which charges were brought, 47 people were found not guilty. 4.4. Truth Commissions, Amnesties, Pardons and De Facto or De Jure Impunity In an approach that can be distinguished from the Eastern European, in which criminal pros­ecution of state-promoted crime is supplemented with rehabilitation and compensation, other countries, like South Africa, have convened truth commissions in an attempt to account for past events. The possible linkage of testimony before the truth commission with immunity from prosecution encourages offender co-operation. This model sets its sights on active rec­onciliation between offenders and victims. Latin American countries like Argentina and Chile have also convened truth commissions and, in some cases, undertaken



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criminal pros­ecution. However, there have been broad grants of amnesty and immunity in these countries, primarily motivated by political interests and benefiting those formerly in power. Meanwhile, Spain, in the process of dealing with the legacy of the Franco regime, has granted amnesties solely for reasons of national reconciliation. Another approach is to limit prosecution primar­ily to those chiefly responsible for political crimes committed in connection with the violent overthrow of the pre-dictatorial system. In Greece, this approach has been supplemented with the prosecution of torture suspects. In Korea, two former presidents who were convicted using this approach were quickly pardoned. A major criminal case was conducted in Mali against principal figures of the dictatorship, primarily from the ranks of the military, but in this country, too, amnesty played at least a supporting role. Also noteworthy in this context are countries that have chosen unusual methods of dealing with the past. In Bulgaria, for example, the prosecutions of a few former political function­aries have concentrated almost exclusively on economic and property crime, not on political crime, a decision which affected the prosecution of former State and Communist Party leader Zhivkov. It is also important to mention attempts made in Bulgaria to prosecute politically motivated homicides committed in work camps in the late 1950s. The proceedings were thwarted, however, for time-related reasons, and this despite the fact that the statute of limita­tions for killing two or more people had already been extended by a reform of the criminal code. The Bulgarian Supreme Court declined to rule on the question, citing lack of jurisdic­tion. Finally, there are countries that have striven for rehabilitation and compensation but that have made no effort to prosecute cases of political Unrecht committed under the old system. Two such countries are Belarus and Russia. 4.5. Legal Problems with Using the Criminal Law to Deal with the Past A discussion of the limitations of criminal law as a means for dealing with the past would be incomplete without mentioning the major problems associated with it in countries like Bulga­ria, the Czech Republic, Germany, Hungary, Lithuania and Poland: namely, statutes of limi­tation and the impermissibility of ex post facto criminal legislation. As a detailed analysis of the complex dogmatic and legal questions raised by these two issues cannot be undertaken here,27 the following remarks are offered in its place.

27  On this point, see S. Zimmermann, Strafrechtliche Vergangenheitsaufarbeitung und Verjährung. Rechtsdog­matische und -politische Analyse mit vergleichenden Ausblicken nach Tschechien, Ungarn und Frankreich (Freiburg 1997).

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The constitutional courts of the Czech Republic, Poland and Hungary have had to address the question of whether recent legislation that provides for the tolling and/or extension of the statute of limitations – without which, in certain cases, prosecution of state-promoted crime would not be possible – represents an unacceptable, retroactive nullification of the statute. Whereas this question was answered in the negative both by the Constitutional Court of the Czech Republic (both in its conclusion and in its justifying remarks) and the Polish Constitu­tional Court (in its conclusion but not in its justifying remarks), the Hungarian Constitutional Court came to the opposite conclusion. In an approach particularly unlike the legal view in Germany and the Czech Republic, the Hungarian Constitutional Court held that non-prosecution on political grounds did not lead to a tolling of the statute of limitations. In several decisions, the Court held that statutory provi­sions to the contrary were unconstitutional, in part because of their impermissible retroactive effect. Interestingly, in its fourth and last decision on the subject, the Hungarian Constitu­tional Court took the view that there is no constitutional obstacle to the criminal prosecution in Hungary of war crimes and crimes against humanity committed in the course of forcibly maintaining the communist system because, according to international law, these crimes are not subject to statutory limitation. A similar view, although limited to genocide, has been taken in Lithuania. An additional difference bears mentioning: it is striking that in Hungary, Lithuania and Poland the statutory provisions concerning the tolling and the lifting of statutes of limitation apply only to those serious and violent acts of state crime committed during clearly identified historical periods of the fallen political regime. The corresponding laws in Germany and the Czech Republic, however, are very different. In these two countries, the tolling of statutes of limitation applies generally to all types of criminal behaviour which, for political reasons, were not prosecuted in the old system. Incidentally, the German Constitu­tional Court has not commented explicitly on this point. The German Constitutional Court has, however, commented on the constitutionality of criminal prosecution of high-ranking and top-ranking officials as well as of border soldiers of the GDR for shots that killed citizens of the GDR as they tried to flee across the border to the Federal Republic. Although these actions, for the most part, were allowed by GDR law, the Constitutional Court has held that punishment does not violate the ban on ex post facto laws. Instead, because the deadly shots were such egregious Unrecht, the Court found it justifiable to lift the ban in order to serve the interests of substantive justice.28 28  Ruling of the German Federal Constitutional Court, 24 October 1996 – BVerfG Neue Juristische Wochenschrift (1997) p. 929. On this point, see J. Arnold, Neue Justiz (1997) pp. 115 ff.; J. Arnold, Juristische Schulung (1997) pp. 400 ff.

with rehabilitation

with rehabilitation

with rehabilitation

with rehabilitation

with rehabilitation

with rehabilitation

with multiple modifications

with multiple modifications

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with rehabilitation

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‘relative’ clean break models

with rehabilitation

‘absolute’ clean break models

Clean Break Model

Germany

Criminal Prosecution Model

Figure 1. Using Criminal Law to Come to Terms with the Past after Regime Changes – Three Basic Models and their Ramifications

South Africa, possibly Chile

Reconciliation Model

regime change, state crime and transitional justice 371

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The Polish Constitutional Court has argued in a similar fashion, albeit in the context of statutes of limitation, that according to the court, the ban on ex post facto laws is fundamental to the rule of law. However, exceptions to this ban may be permissible in order to establish historical justice following an extraordinary regime change. Criminal prosecution as a means of coming to terms with the legacy of a non-communist dictatorship presents a series of legal problems as well, which can only be touched on briefly here. In Latin America, one of these problems involves impunity from prosecution for human rights violations; that is, impunity for actions that, ‘for the most part, are addressed by national substantive criminal law and can be categorised as common crime, but which – primarily for factual, less for normative, reasons – are not punished’.29 Ex post facto issues and issues concerning statutes of limitation have also played a role in Mali, Korea and Greece.

5. Summary In an initial summing up of this necessarily abbreviated and cursory report of findings, the first thing to recognise is that the countries examined in the study accorded different signific­ance to the criminal law as a means for dealing with the past. The Eastern European coun­tries, at any rate, appear to be largely in agreement with regard to the role of rehabilitation and compensation, although more comparative research into their realization in practice is re­quired. With regard to the direct criminal prosecution and punishment of political and state-­promoted crime, however, there is much less uniformity. This is clearly illustrated by the disparate criminal justice practices in the individual countries. Nevertheless, it cannot be said that criminal law plays no role whatsoever in accounting for the past. 5.1. Models of Using Criminal Law to Deal with the Legacy of a Dictatorship Based on preliminary research findings, several models of using criminal law to deal with the legacy of a dictatorship can be identified. There appear to be three basic models: the ‘clean break’ model; the ‘criminal prosecution model’ and the ‘reconciliation model.’ These de­scriptions are, however, working terms: they require further verification. The ‘clean break’ concept, for example, is highly complex and does not necessarily mean that no societal ac­counting of the past,

29  K. Ambos, Straflosigkeit von Menschenrechtsverletzungen. Zur ‘impunidad’ in südamerikanischen Ländern aus völkerstrafrechtlicher Sicht (Freiburg 1996) p, 9 (with English summary).



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whatsoever, has taken place.30 For this reason it is only proper to refer to a ‘clean break’ in the context of criminal law. Also, the association of particular countries with particular models is not yet conclusive and must be viewed as provisional. Revisions are not impossible nor is the association of one and the same country with more than one model. The majority of the countries under study can be assigned to the ‘clean break’ model. This model, however, has several variations: 1. ‘Absolute’ clean break model (e.g., Georgia, Ghana, Spain), 2. Modified ‘absolute’ (rehabilitation) clean break model (e.g., Belarus, Russia,), 3. Modified ‘relative’ (rehabilitation) clean break model (e.g. Bulgaria, Czech Republic, Hungary, Lithuania, Poland), and 4. Multiply-modified ‘relative’ clean break model (Argentina, Chile, Greece, Korea, Mali). The first, the ‘absolute’ clean-break model, describes the path followed in countries that deal with the past ‘absolutely’ without any use of criminal law whatsoever. In the modified ‘abso­lute’ (rehabilitation) clean break model, the past is dealt with solely by means of rehabilita­tion: there is no criminal prosecution for political Unrecht committed during dictatorship. The modified ‘relative’ (rehabilitation) clean break model concentrates primarily on rehabili­tation and compensation but engages in selective criminal prosecution as well. In practice, however, a de facto clean break is made. As a result, both the criminal prosecution and the clean break are relative. As far as the multiply-modified ‘relative’ clean break model is con­cerned, the major component of the modification of the clean break is not rehabilitation. In­stead, other modifications such as selective prosecution, truth commissions and amnesties predominate. To be sure, not every country associated with this model has engaged in all of these modifications simultaneously. The other two basic models, the ‘criminal prosecution model’ and the ‘reconciliation model’ must also be clarified. The ‘criminal prosecution model’ (Germany) pursues far­reaching rehabilitative and compensatory goals in addition to intensive efforts in the area of criminal prosecution. The ‘reconciliation model’ (South Africa, possibly Chile) pursues rec­onciliation under the aegis of a truth commission and with the active participation of poten­tial offenders. Amnesty is offered in exchange for an official confession.31

30  On this subject as a whole, see G. Schwan, ‘Die Idee des Schlußstrichs – oder: Welches Erinnern und welches Vergessen tun der Demokratie gut?’, in G. Smith and A. Margalit, eds., Amnestie oder die Politik der Erinne­rung in der Demokratie (Frankfurt a.M. 1997) pp. 90 ff. 31  R.I. Goldstone, ‘Frieden und Gerechtigkeit – Ein unvereinbarer Gegensatz’, in G. Smith and A. Margalit, op. cit., pp. 40 ff.; K. Thomas. ‘Die Verfassung der Amnestie: Der Fall Südafrika’, in G. Smith and A. Margalit, op. cit., pp. 179 ff.

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6. Conclusions Final conclusions cannot yet be drawn at this stage of the research project. Also, an attempt to articulate grounds for the observed similarities and differences among the Eastern Euro­pean as well as the Western European, Latin American, Asian and African countries included in the study would simply be too speculative at this point. Besides, these grounds, with their complex historical, political, socio-cultural and socio-psychological nature, cannot be ex­plained from a purely legal perspective. The difficulties in drawing conclusions about the reasons for similarities and differences in the use of criminal law to come to terms with the past are in part also due to the fact that the study incorporates more than one level of com­parison, which, in some instances, increases the degree of complexity. For example, one level of comparison is among post-communist countries, a second is between post-communist countries on the one hand and successors of non-communist systems on the other and among successors of non-communist countries. 6.1. Provisional Explanations A separate attempt to explain the different approaches taken in Germany and Poland after 1989 with regard to using the criminal law to come to terms with the past has already been undertaken.32 The comparison was conducted both on an intra-societal as well as on an inter­societal level and suggested the following explanation for Poland’s tendency to lean towards the clean break model and Germany’s to the criminal prosecution model: One factor can be seen in the diametrically opposed way in which real-life socialism was practised in the two countries. This difference can be traced to discrete historical roots and traditions and includes: – the social status of communism in Poland and Germany before World War II; – the ideological climate in the post-war period and the degree of dependence on Soviet communism; – the political distance from the Federal Republic of Germany during the Cold War. Thus, it appears that geopolitical parameters played a not unimportant role; – the decisive influence of the various religions practised in the two nations; and – differences in the so-called typical national characteristics, mentalities, ways of life and standard of living. 32 

See J. Arnold and E. Weigend, Recht in Ost und West (1997) pp. 8 ff.



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The fact that communism in Poland was less ideological may also be a clue as to why the so­ciety’s need to work through this ‘moderate’ past seems to be smaller. It might also explain why criminal prosecution of state-promoted crime in Poland has to this day been limited pri­marily to Stalinist crime. These factors alone, however, cannot account for the different methods of dealing with the past in the two countries. The following points must also be considered: – In Poland, the Poles themselves determined how to deal with the legacy of the old system. In contrast, in Germany, at least since unification, the process was driven by West Ger­mans; in other words, the legal accounting for the GDR past was conducted by outsiders. – In practice, the accounting of the GDR past has been overshadowed by the proposition that lessons must have been learned from the mistakes that were made in dealing with the Nazi legacy, This has given rise to the impression that these mistakes should not only not be repeated in dealing with the GDR past but that the process of dealing with the legacy of the GDR should compensate for them. – Furthermore, it seems that, in addressing the past, neither country has been able to dis­tance itself from deep anti-communist sentiments. In addition, Germany has had to deal with the not infrequent complacency of West Germans and a tendency both to rely on traditional scapegoats and to create new ones.33 However, the validity of these explanations as well as their currentness must be examined in light of recent developments in Poland. Since the election victory of the Right in the fall of 1997, it appears that developments in Poland can be characterized by an increasingly political accounting of the past.34 Only time will tell whether and to what extent this will have an ef­fect on the use of the criminal law to come to terms with the past. Additional explanations for different approaches to using the criminal law to come to terms with the past may be revealed by comparing post-communist systems with successors of non-communist countries. In this context, for example, it is striking that in countries like Germany and South Africa, victims of the ousted dictatorships have played a very important role in determining how to deal with the past. But whereas the fall of the dictatorship in South Africa can be causally linked to decades of resistance – although the effects of external circumstances such as the end of the Cold War cannot be disregarded J. Arnold and E. Weigend, op. cit., p. 92. M. Ludwig, ‘Wie schlimm war die Vergangenheit?’, Frankfurter Allgemeine Zeitung (6 May 1998) p. 16. 33  34 

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entirely – the connec­tion between the opposition movement in the GDR and the fall of GDR socialism is not as clear. Further questions to be dealt with in a comprehensive comparison of system change are raised by the fact that – in all its variations – the clean break model, at least in certain coun­tries, appears to be related in some way to convergences, i.e. to the fact that certain conditions remain unchanged even after a country has undergone a system change. It may be that the system dissolved itself or that those responsible for implementing the change were high-level representatives of the old system who themselves underwent a transformation. The question of the transformation of the law and the administration of justice also arises in this context In any case, a clean break is to be expected if law, judges and prosecutors are carried over from the old system to the new. In such cases it must be ascertained whether, to what extent and by whom the law in force during the dictatorship was nullified, either de facto or de jure, to en­able the commission of state-promoted crime. 6.2. Critical Findings Despite all of these unanswered questions, one finding has crystallised very quickly. Indeed, it could be said to have been clamouring for attention: On the one hand, coming to terms with the past is not primarily the job of criminal law; criminal law does not provide a reasonable substitute for the societal and political accounting for the past that must be carried out for the sake of the future. On the other hand, criminal law is not powerless when it comes to dealing with the past. At first glance, this finding seems plausible. It indicates that the process of coming to terms with the past is significantly influenced by politics and significantly dependent on the regime change, but that its concrete connection with cultural, religious and social compo­nents is no less significant. However, this finding does not represent much of a gain in that it is hard to imagine that the very political policy that has supported a clean break with regard to the use of the criminal law would force a societal reckoning with the past. The same is true for those political systems in which state crime is still being committed. And it appears equally unlikely that the observed selective prosecution can be effective in countering state crime. Therefore, a broader perspective must be adopted when discussing this issue. This expansion entails acknowledging the centrality of state crime in the relationship be­tween law and politics. Clearly, the law as the outer limit of politics should also take a stance against state-promoted crime,35 a stance which cannot 35  See W. Naucke, ‘Normales Strafrecht und die Bestrafung staatsverstärkter Kriminalität’, in J. Schulz and Th. Vormbaum, ed., Festschrift fur Günter Bemmann (Baden-Baden 1998) pp. 75 ff.



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be taken if a clean break with regard to the criminal law has been made and if prosecution of state crime is sporadic and seemingly arbitrary. But this implicates a turn to natural law and a concurrent abandonment of the posi­tive law. We need not shy away from natural law. If we seriously intend to overcome the princeps legibus solutus principle, national criminal justice systems must recognize natural law.36 Even if it seems that this path has never been followed before, two positive develop­ments are steps in this direction: the development of an effective international criminal law37 and the establishment of an international criminal court38 at least for the prosecution of serious human rights violations. Natural law itself does not necessarily eliminate the possi­bility of reconciliation. But an important insight – based, perhaps, on natural law – seems to be that reconciliation is only possible after the truth has been uncovered and acknowledged.39 To this extent the role of criminal law includes its use as a coercive means with which to un­cover the truth and to make possible subsequent acknowledgement by the offender and, more importantly, by society. It is, however, clear that the actual taking of this step cannot be forced by the criminal law.

36  See J. Arnold, Gustav Radbruch und die ‘Mauerschützenfälle’: Ein Kontinuitätsproblem, lecture held on the oc­casion of the 10th Gustav-Radbruch-Forum der Arbeitsgemeinschaft Sozialdemokratischer Juristinnen und Jur­isten, 27 September 1997 in Heidelberg, unpublished manuscript, pp. 17 ff. (in press). See also Y.-W. Kim, ‘Vergangenheitsbewältigung durch das Strafrecht?’, in A. Eser, ed., Festschrift fur Harua Nishihara zum 70. Geburtstag (Baden-Baden 1998) pp. 452 ff. 37  See J. Arnold, loc. cit., pp. 17 ff. See also Y.-W. Kim, loc. cit., pp. 452 ff. 38  On this point, see K. Ambos, 29 Zeitschrift für Rechtspolitik (1996) pp. 263 ff.; H. Roggemann, 29 Zeitschrift für Rechtspolitik (1996) pp. 388 ff. 39  See G. Smith, ‘Ein normatives Niemandsland? Zwischen Gerechtigkeit und Versöhnungspolitik in jungen De­mokratien’, in G. Smith and A. Margalit, op. cit., pp. 11 ff.

2. The Cooperation between Police Services in Border Areas

Police Co-operation in the English Channel Region 1968–1996 James Sheptycki 1 ESRC Junior Research Fellow, University of Edinburgh, United Kingdom

I. Introduction It could be said that Britain was first incorporated into the political-economy of Europe when the Emperor Claudius successfully invaded England in A.D. 43, after two earlier attempts undertaken by Julius Caesar in 55 and 54 B.C. It is even possible to say that the displacement of the Belgae and other Celts into England, subsequent to the successful expansion of the Roman Empire throughout Gaul, began the processes of incorporation much earlier. Histori­cal beginnings are always difficult. When examining the nature of the frontier between the present day United Kingdom and her immediate neighbours it is tempting to assume that the Channel provides an impregnable geographical boundary, but a glance back through history is sufficient to show that this boundary is no prophylactic – it is permeable. This point be­came very evident to me in 1994 during the beginning phases of my study of the working practices of transnational police officers in the English Channel region. An evening walk along the Leas in Folkestone, enjoying the view out over the water towards the not too distant coast of France, brought me to the Parish Church of Saint Mary and Saint Ennswythe where the keystone above the entrance records that Christian worship had been practised continu­ously on that site since 630 A.D. Those two saints were, apparently, part of the contingent of missionaries led by Augustine (later first archbishop of Canterbury) sent from Rome by Pope Gregory in 597 AD. Those missionaries were kindly received by King Ethelbert of Kent who, though a pagan himself, had married a Christian: the Frankish Princess Bertha. For more than fifteen hundred years, family ties transgressed natural and cultural boundaries that,

1  Comments on this paper should be addressed to the author at the Centre for Law and Society, University of Edinburgh, Old College, South Bridge, Edinburgh, UK EH8 9YL.

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nevertheless, were of clear significance. Reflecting on the subsequent history of the region I recorded that: … successive waves of invaders came to this island and landed at this place. Great ships have been launched from this coast to take English adventurers to Europe and beyond. It is here, on England’s south coast, that the myth of borders – that a barrier, natural or man-made, exists that can staunch the flow of humanity upon the globe – is claimed in its most concrete, English, manifestation. This is a symbolic location (field notes, Nov. 1994).

The importance of this symbolic location was amplified during the early 1990s in the imme­diate build-up to the opening of the Channel Tunnel, an engineering feat that had been a fan­tasy since Napoleonic times. The year 1992, especially, is fixed in public discourse as a pivotal date, when transnational policing in the English Channel region, and Europe more generally, was established. This paper will show that, in this region, 1992 was but another moment in an ongoing process of cross-border police development. Although this date is a prominent fixture in the literature on police co-operation in Europe, records have recently been made available which show that, in fact, the process of consolidating such links had been underway for at least twenty-five years. This paper draws on data gathered between 1994 and 1996 in Kent, Belgium, France and the Netherlands concerning transnational police work in northwestern Europe. This data consists of 471 operational police case files obtained from the European Liaison Unit (ELU) based at Folkestone, interviews with relevant police personnel and observational field notes, as well as internal police documents obtained from a number of units operating in the region. One key set of documents are the complete records of the Cross-Channel Intelligence Con­ference (CCIC) an organisation established in 1968 to foster regional crossborder policing.2 These annual meetings (in some years biannual) established personal connections between key officers operating in this region who built the infrastructure for cross-border policing that exists today. The following analysis draws upon these data in order to shed light on the de­velopment of transnational policing in this region from the mid-1960s until the present. This is a very particular history, an important one for our understanding of the changing police mandate in Europe at the end of the twentieth century, but its particularity needs to be con­nected to broader issues. Only some of the more 2  I am grateful to D.F. Gallagher of the Kent County Constabulary and Doctoral Candidate at the University of Southampton as well as Commissaris J. Denolf of the Police Judiciaire, Bruges, for facilitating my access to the records of the CCIC. The complete archive of the CCIC (in three languages: French, English and Flemish) is currently housed in the Headquarters of the Police Judiciaire in Bruges. The men who established this 0r­ganisation were excellent record keepers, their inheritors no less so. I have obtained over 1,000 pages of do­cumentation from this source; it is by reference to these documents that the development of cross-Channel police co-operation can be traced.



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salient features of this broader history are brought into the analytical frame here. Anderson et al.3 offer a thorough overview of the broader back-ground to these processes.

2. Four Phases of Development in Transborder Policing For the purposes of this analysis we can break down the history of policing in the English Channel into four periods. The first of these runs from 1968 to 1970. During this period the foundation of the transnational police network was laid and its working practices established. The second phase is the longest in the history of police co-operation in this region thus far and it runs from 1971 until 1985. During this period the CCIC, together with the often dif­fuse and informal networks of police officers who attended these meetings, was the principal vehicle in the region for the exchange of criminal intelligence and cross border policing gen­erally. Interpol was occasionally of some importance but, as we shall see, it was this local network that was the more efficacious. The third period is rather shorter, extending from 1986 until 1991. This phase was an interregnum of sorts during which the planning for the Channel Tunnel ‘fixedlink’ project was underway. It was during this time that the local net­work came under the considerable scrutiny of various national governments and it became increasingly formalised and institutionalised. Consequently, the CCIC became less concerned with the exchange of criminal intelligence and more caught up in discussions about policy di­rections. Questions about problems of the legal and organisational framework for transna­tional policing had always featured on the agenda of these meetings, but after 1986 this became a matter of increasing, perhaps even primary, concern. From 1991 cross-channel po­licing entered the current phase. In this period, the exchange of criminal intelligence became firmly embedded in the technology of the ‘information age’. As a consequence the primacy of the CCIC for fostering the exchange of criminal intelligence became even less of a feature. In the recent phase, the formation of the European Liaison Unit based at the Channel Tunnel site in Folkestone, together with the establishment of the PoliceSpeak/Linguanet Project, has routinized the exchange of criminal intelligence and information. Transnational policing in the current period is no longer a matter of exceptional circumstance – it is a feature of day-to­day policing over the whole of this region.

3  M. Anderson, M. den Boer, P. Cullen, W. Gilmore, C. Raab, N. Walker, Policing the European Union, Theory, Law and Practice (Oxford 1995).

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3. Phase One – Laying the Foundations 3.1. The Issues One of the prime movers of the CCIC initiative in the early years was the then Chief Con­stable of Kent, Sir Dawney Lemon. The minutes of the first meeting record his comments: The Kent coastline stretches for a distance of 120 miles. It is not possible to stand guard over such a length of seashore, but it is possible to learn of persons engaged in criminal activities between South East England and the Continent and take action against them. This, however, can only be achieved if the police and law enforcement agencies, on both sides of the Channel work together and pool their information in an endeavour to beat the enemy common to all law officers – the criminal (Minutes of the Conference to Discuss Cross Channel Intelligence at Police Headquarters, Maidstone, 15 May 1968).

He went on to say that he wished to develop ways to ‘encourage closer personal relationships between officers of his Force and Belgian and French police officers stationed adjacent to the English Channel’. He argued that there was a need to foster a better understanding of the laws and procedures in place in each country in order to ‘better understand each other’s prob­lems’ and in the hope that ‘if this is achieved, closer co-operation will follow’. As a conse­quence of this, much of the discussion of the conference, and the subsequent conference held in Bruges six months later, was given over to explanations of the legal and organisational principles of the various participating police forces. There was much to learn about each other. Placing this in the context of broader European politics, it would he appropriate to point out that this initiative for an intra-regional police alliance predates the entry of the United Kingdom into the European Economic Community. The initial application for British entry into the EEC had been vetoed by Charles de Gaulle on 14 January 1963. It is also interesting to note that de Gaulle also took France out of the NATO framework in 1966. The mere fact that the CCIC initiative was put on the table some twelve months later is testimony to the dif­ ficulty, or perhaps impossibility, of de-coupling the slates of Europe from each other. The UK became a formal member of the European community in 1973, by which time institution­alised transnational policing in the Channel region had been ongoing for half a decade. This police work was, by and large, not an issue of interest to politicians until much later. Though transnational policing itself was not much of a concern to politicians, some of the problems that police were dealing with were of utmost importance. One has only to recall Enoch Powell’s lurid ‘Rivers of Blood’ speech of 9 April 1966 to guess what that was. A glance at the minutes of the first two CCIC meetings is sufficient to tell what particular issue sparked the establishment



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of this institution since great attention was given over to one spe­cific topic: illegal immigrants. The minutes for the first CCIC meeting at Maidstone contain details of twenty-two cases of immigrant smuggling. These cases are sufficiently revealing for a general characterisation of the modus operandi for this type of crime. In general, at this time most of the illegal immigrants that British police were aware of came from Pakistan, India, and Iran. There were records of seamen from elsewhere in the Commonwealth desert­ing ship while in British ports, but such deserters formed the smaller portion of illegal en­trants to the UK. Those actively smuggled in were typically housed in cheap bed and breakfast hotels in Belgium and France before making the final stage of their journey to Bri­tain. A typical overland route from Pakistan took in Iran, Turkey, Greece, Yugoslavia, Aus­tria, West Germany and ended up at a staging-post in Belgium or France before commencing the final passage to the UK. According to the cases presented in these files, the cost to each individual for the overland journey was approximately 12,000 rupees or £600. At this time il­legal passage across national boundaries was a profitable business. One group, which was the subject of a successful police operation resulting in three arrests, was thought to average 20 illegal entries to the UK per week. The networks of people who facilitated this passage were typically multi-national, and the files reveal that many nationalities took part in, and sought to profit from, the transport-chain, including South African, Mauritian, Belgian, French, Dutch and British Nationals. Immigrant smuggling seemed to require an international re­sponse by police. While it is quite clear from the records of the CCIC that illegal immigration was perceived to be the most pressing issue for police in the border region, it would be a mistake to con­clude that this was the only issue. Police in Belgium and France were exercised by other wor­ries, especially the transport of stolen goods across the Channel. Of particular concern were the activities of antique dealers thought to be involved in smuggling stolen works of art and antiques, but there was no direct evidence that could lead to criminal charges at that time. A list of antique dealers known to make frequent crossings was made available to the Regional Police Judiciaire (in Flemish: Gerechtelijke Politie) in Bruges in early 1969 and there was a tacit understanding to keep their movements under surveillance. Another issue was stolen automobiles; it was noted that 680,000 vehicles travelled through the port of Dover in 1968 and that cross-border transportation was likely to account for a proportion of the 1,119 ve­hicles stolen in Kent County over the previous five years. While remarks were made in meet­ings of the CCIC about the incompatibility of British right-hand drive vehicles on continental roads, it was also pointed out that cars can easily be broken up and sold for spare parts and this was thought to be a lucrative business. Other officers pointed out that left-hand drive ve­hicles were in use much further afield and the port of Antwerp was thought to be an import­ant

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staging post for transporting cars to destinations as far away as Africa, South East Asia and Australia. The minutes of the CCIC for April of 1969 contain the details of an interesting case which amply illustrates the function of police co-operation in this region. The case concerns the theft of a sloop from the Pas-de-Calais. As it turned out, the vessel was stolen from the French port on 9 October 1968, by two German nationals who were wanted in their home country for armed robbery and who had deserted from a Dutch registered ship. The aban­doned sailing vessel was recovered in Folkestone harbour on 10 October. Between that date and 25 October the two individuals concerned engaged in a series of burglaries and thefts in the Kent County area. They were arrested in England where they were charged with burglary and theft, but arrangements to return them to Germany were undertaken so that they could stand trial there, not only for crimes committed on German soil, but also for crimes com­mitted in France. This case is interesting for the variety of crimes committed and for the range of territory they were committed over. What is also interesting is that the Interpol com­munication channels were, in part, bypassed. While the extradition back to Germany was ac­complished through formal channels and some of the initial cross-channel communications were routed through the Paris and London Interpol offices, much of the communication was direct between the Pas-de-Calais and Folkestone. The files make clear that ‘direct liaison [was] made with the British because of the urgency of the matter’. There are other cases of ‘ordinary law crimes’ contained in these files which illustrate much the same point. Police work could be done efficiently and effectively in the Channel region provided good com­munication links were in place.4 The minutes of the CCIC in the years 1968 to 1970 also show some interest shown in the smuggling of drugs, characterised as: ‘hashish, marihuana, Indian hemp and opium’. This traffic was said to be carried out by North Africans, Turks and ‘London beatniks’ in co­operation with their ‘colleagues of East Flanders’. What little evidence there is of this type of traffic indicates it to be small scale and of low profitability. While there was some mention of this issue in the early years, its marginality is reflective of the fact that drug use had not yet become a major area of policy concern for police. Indeed, at this time there were only seven specialist drug squads established in the entire United Kingdom with a total complement of about fifteen officers. Some of these specialist squads had dual

Under the heading of ‘Matters Arising’ the minutes of this meeting record that: ‘In appropriate cases, informa­tion, in particular that relating to enquiries received from or sent to places in France and Belgium outside the ju­risdiction of [he Judicial Police at Lille or Bruges, is passed through the Interpol Office at C.1 Department at New Scotland Yard. Copies of all relevant messages forwarded direct to Lille and Bruges are sent to the Inter­pol Office at New Scotland Yard for information. 4 



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functions such as drugs and immigration.5 While international concern about drug use can be dated from the Hague Con­vention of 1912, concerted pressure for control, prohibition and criminalisation in Europe is much more recent. The United Nations Fund for Drug Abuse Control was created in 1971, the same year the UN Convention on Psychotropic Substances came into effect and the same year that the Pompidou Group was established to exchange information on drug problems in Europe. The major piece of British legislation regarding the criminalisation of drug supply, the Misuse of Drugs Act, also came into effect that year. Of course there were precursors to all of these developments but, as others have argued, 1971 represents the culmination of a long evolution towards an international hegemony of the prohibitionist model for controlling drug use.6 It seems plausible to argue that drugs were rather low on the agenda of transna­tional police officers when the CCIC was in its formative stages in 1968–1970; police action prior to that time was merely a rehearsal for what was to come, and this is largely so both na­tionally and internationally.7 In the formative years a paucity of case’) in the CCIC docu­ments pertaining to this type of crime is testimony to the fact that drug criminalisation had yet to establish itself.8 That 5  N. South, ‘Drugs: Control, Crime and Criminological Studies’, in M. Maguire, R. Morgan, R. Reiner. eds., The Oxford Handbook of Criminology (Oxford 1994) pp. 393–440. 6  E. Nadelmann, Cops across Borders; The Internationalization of U.S. Criminal Law Enforcement (Pennsylva­nia 1993). 7  Significantly, it was in that year that the US Bureau of Narcotics and Dangerous Drugs entered into formal ar­rangements with French police and the ‘French Connection’ was broken. It was at this time that Richard Nixon declared the ‘war on drugs’ in the United States and, further, empowered US law enforcement agencies to take that war into the international arena (E. Nadelmann, op. cit. pp. 143–144). It is clear, however, that the prohibi­tion strategy was firmly established as a foreign policy concern much earlier, at least in the backstage of the in­ternational scene. In 1943 the League of Nations, with a grant from the Carnegie Endowment for International Peace, published a study and set of proposals for international control of drugs (B. Renborg, International Drug Control; A Study of International Administration by and through the League of Nations (Washington 1943)). The author of the report, the Chief of Section in Charge of the Drug Control Service of the League of Nations, argued that ‘inevitably drugs must he controlled in all countries and territories [since a] single weak spot con­stitutes a grave danger, the danger of drug addiction’ (p. 3). The report also claimed that ‘the campaign against illicit traffic and drug addiction was hampered by lack of knowledge as to the magnitude of the problem … it is obvious that sufficient study has not yet been given to the problem of drug addiction which is at the root of the whole drug question’ (p. 254). Despite these limitations George Finch, Director of the International Law Division of the League of Nations, noted in the preface that the document ‘furnishes an outstanding example of the necessary coordination in control across [international] boundaries’ and, further, that procedures ‘for the limitation in production and control of manufacture, distribution and use of drugs is, indeed, suggestive of a more effective approach to other international problems and of methods that might well be adapted … to interna­tional regulation in other fields’ (p. iii). 8  The Minutes of the CCIC for 29 April 1970 held in Bruges are somewhat illuminating of the drug situation in Belgium at this time. They reveal ‘substantial increases’ in this sort of activity over the course of 1969. Thus, 10.5 kilos of raw opium were seized in the largest drug seizure of that year. Small quantities of cocaine had also been recovered, but no heroin at all. The Judicial Police of Bruges seized 10 kilos of hashish and marijuana dur­ing the year and fifty LSD capsules had been confiscated at a ‘hippie festival’.

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was set to change and the issue certainly came to exercise police in the Channel region. However, set in the context of contemporary developments, these rec­ords show quite conclusively that it was immigration and the exigencies posed by intermit­tent, transnational, ordinary law crimes which initially provoked the establishment of an infrastructure for transnational policing. The international drug war was a matter for future development. 3.2. Police Agencies in the Cross-Border Enterprise There were two meetings of the CCIC held in 1970, but they were less than one week apart. The first was held in Brighton and, with the exception of the Commissaire Principal of the Bruges Police Judiciaire, all the officers present were from British police forces. In all, eight UK police forces were represented, including the Metropolitan Police (Special Branch), Devon and Cornwall, Dorset and Bournemouth, Sussex, Surrey, Hampshire, Kent and Essex.9 The purpose of this meeting was to consolidate the process of networking amongst officers on the UK side. According to the minutes, formally designated liaison officers from the various forces were meeting together in order to establish ‘whether the domestic arrange­ments in the constituent forces were adequate and workable so far as the passing of informa­tion was concerned’ (CCIC, Brighton, 23 April 1970). The minutes for the meeting one week later in Bruges show that the last neighbour had been brought into the transnational partner­ship. Mr. J. Matthys, the Chief Commissioner of the Bruges Police Judiciaire, another im­portant instigator of the CCIC initiative, noted in his opening address that ‘there was still one flaw in our circle and today I presume, we have filled the gap. Indeed, we have the great pleasure to welcome … representatives of the Kingdom of the Netherlands’ (CCIC, Bruges, 29 April 1970). Thus all four countries bordering on the English Channel had been formally linked up in a cross-border police initiative. We should pause to consider the multiplicity of police agencies that were potentially implicated in this endeavour. In the UK policing is organised by territory, thus by-and-large it is police forces which have proximity to the Channel which have regular interests in police co-operation in the re­gion. In this, as in all other areas of policing, Chief Constables have relative autonomy in de­cision making through the doctrine of ‘Constabulary Independence’ and the distinction between ‘operational’ and ‘policy’ decisions (see Reiner10 for an explanation of these terms). However, Her Majesty’s 9  It is interesting to note that police reorganisation in the late 1960s and early 1970s heralded a unification of the Dorset and Bournemouth forces which, in any case, ceased to have an active interest in the CCIC initiative after its early start-up phase. As the CCIC became more active, the Suffolk Constabulary was brought in. Presum­ably, this is reflective of the cross-border traffic between these two counties and the continent. 10  R. Reiner, Chief Constables (Oxford 1991).



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Customs and Excise (HMCE) and Her Majesty’s Immigration Ser­vice (HMIS) also have overlapping responsibilities in specific areas of cross-border crime and there is some administrative friction between these different institutions.11 Repre­sentatives of the latter two services were only seldom in attendance at meetings of the CCIC. In later years representatives of NCIS were occasionally present and UK police officers sec­onded to the Interpol NCB in London have always been in sporadic attendance.12 The situation was even more complicated in the Netherlands which, in this early period, had 148 police agencies many of which could conceivably have had interests in crime in the Channel region. Partly in response to problems of national co-ordination and partly in re­sponse to the needs of international co-operation, this structure was simplified by the Police Act of 1993 which integrated the police system into a nationally co-ordinated organisation divided up by territory – 25 regional forces and one national centre providing support services, including the National Criminal Intelligence Service (CRI).13 The minutes of the CCIC show that, in the early years, the Netherlands was represented most often by the Rot­terdam Police, with occasional input from the Dutch Interpol National Central Bureau (NCB) in the Hague. While there is little in the literature about institutional rivalry between the various Dutch police agencies, there is some suggestion that administrative fragmentation was a drag on co-ordination of police work nationally. Organisation of policing in Belgium was, and continues to be, much more complicated than either the UK or Dutch system. An audit of the police function in Belgium carried out in 1987 listed 612 police organisations in total (Team Consult, Ministry of the Interior, 1987, cited in de Cock, 1992). It has been noted 11  An example of this can he found in illegal immigration cases. The main aim of the HMIS is controlling the im­migrants themselves, whereas police focus on the crime of immigrant smuggling. There are potential problems when immigration officials repatriate illegal immigrants without due consideration to the evidentiary require­ments of police for prosecuting the individuals involved in smuggling. This problem was partly addressed by the formation of a special team in the HMIS in 1993–1994 to co-ordinate with their police colleagues. 12  The police officers employed on Special Branch duties arc concerned mainly with criminal offences against the security of the State, with terrorist or subversive organizations, with certain protection duties, with keeping watch on seaports and airports, and with making enquiries about aliens’ (M. Kettle, ‘The Politics of Policing and the Policing of Politics’, in Peter Hain, ed., Policing the Police Vol. 2 (London 1980), p. 52; see also J. Be­nyon et al., Police Co-operation in Europe (Leicester 1993), p. 107. This organisation thus has something of a national purview, although each force’s SB officers are responsible to their respective Chief Constables. The National Criminal Intelligence Service (NCIS) was preceded by a number of other nation-wide intelligence units, most notably the National Drugs Intelligence Unit and the Football Intelligence Unit, but these precursors were themselves relatively late arrivals into UK policing. All of them, regardless of form, have been limited to the function of intelligence gathering and dissemination. 13  M. Wintle, ‘Policing the Liberal State in the Netherlands’, 6/3 Policing and Society (1996) pp. 181–197; R. Doornebal, The Police of the Netherlands (The Hague 1994); T. Jones, Policing and Democracy in the Nether­lands (London 1995).

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that ‘the organisational structure for the police in Belgium appears to result in some conflict over jurisdiction and competence’.14 This friction is clearly evident in some of the minutes of the CCIC. Historically the Police Judiciaire/ Ge­rechtelijke Politie has been the only force in Belgium with a national competence in crime in­vestigation and the Interpol NCB for Belgium is located within that institution.15 This might have limited Belgian police representation on the CCIC to one agency, but the minutes show that members of various Municipal Police forces (Police Communale) occasionally attended, as did representatives of the Belgian State Security Police, the Aliens Police, Customs, Pa­lace of Justice officials and other judicial-type officials. Representatives of the prosecutor’s office (Provincial Attorney General) have attended every meeting. Notable by its absence is the Belgian Gendarmerie.16 The minutes of the CCIC also show that the French Gendarmerie has not been particularly active in cross-border police co-operation. However, departments within the Police Nationale are. In particular, the Police Judiciaire and the Police de l’Air et des Frontières have been the most prominent participants. The former is an investigative police which works under the di­rection of judicial officials; the latter has responsibility for policing the borders, including air and sea ports. It is evident that administrative control of French policing is achieved within the police system itself, thus the Services Régionaux de Police Judiciaire (SRPJ) and central police authorities are frequently in attendance at the CCIC meetings as are the Renseignements Généraux.17 The minutes of the CCIC also show that J. Benyon et al., op. cit. Following ‘civilianization’ of the Gendarmerie/Rijkswacht in 1992 this changed somewhat with the Gendar­merie taking on a national role in crime investigation. 16  A representative of the Belgian Gendarmerie attended the CCIC held at Winchester on 6–7 May 1975 for the special session on drug trafficking. A Belgian representative for the Police Judiciaire argued that his organisa­tion alone was the qualified authority in Belgium for international action and that the Gendarmerie should be excluded from general participation on that basis. The Chairman put forward a motion to the extent that ‘it should be the responsibility of the present delegates of a country to decide whether an observer from another Police organisation should attend when appropriate items were to be discussed and that he would make this point clear to the Gendarmerie Nationale in writing.’ This resolution was unanimously accepted. (Minutes of the CCIC held at Winchester, May 1975) Eleven years later this matter resurfaced and representatives of the Police Judiciaire (the same persons who had made the original representations in 1975) again argued against the extension of the CCIC to include the Gendarmerie. One of these officers stated that ‘relations between Forces and Services in Belgium could be described as too sensitive to change former conclusions’ (Minutes of the CCIC held at Rotterdam, 14–15 May 1986). Membership was not extended and has not been extended to date. 17  According to John Benyon et al. (op. cit.), ‘The Renseignements Généraux (RG) is essentially a political police, of approximately 4,000 officers. Their duty is to collect and collate information on individuals or groups who are regarded as constituting a danger to the state, as well as conducting undercover investigations on persons in public life. Its plain clothes officers are empowered to infiltrate organisations, collect information, tap tele­phones and open mail, subject to warrants. It has rather wide powers and the officers seem to be largely free to act as they wish. In some respects it is similar to the UK Special Branch. It operates throughout France and passes 14  15 



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representatives of the Interpol Central Bureau at St. Cloud were in frequent attendance at these meetings.18 It is appropriate 10 include these officials amongst the French delegation since Interpol was, in essence, an ex­tension of the French Ministry of Interior which bore the major portion of the financial burden and, prior to the early 1980s, provided the vast majority of its work force including four successive General Secretaries between 1946 and 1986.19, 20 The Police Nationale is highly segmented, both vertically and horizontally which leads to administrative friction. Similar to the Belgian case, this has given rise to difficulties collo­quially known as the guerre des polices which can also be taken to include friction between the two national police agencies generally.21 However, from the point of view of the oper­ations of the CCIC, institutional infighting appears to be less of an issue than the insistence on communications being routed through central administration in Paris. This is clearly evi­dent in the minutes of the CCIC. For example, during the meeting held on 16 April 1969 in Lille, the local Chief of the Regional Police Judiciaire noted that while relations between ports were good enough to allow direct cross-border contact between police officers in the case of urgent matters, he recommended that ‘information for all ports on the French side of the Channel be sent in the form of a message to the French Bureau Central National’. One year later a request was made by the Assistant Chief Constable of Sussex for specification of designated contact men in each of the participating agencies of the CCIC ‘so that direct inter­vention of the leading officers can be avoided’ (CCIC, Bruges, 29 April 1970). The response from the Belgians was the prompt listing of four individuals to undertake such liaison speci­fied by crime type (‘general inquiries’, ‘robbery’, ‘drugs’ and ‘forgery and immigration’). The response from the Commissaire de Police chargé du BCN Interpol Paris, was that ‘for France it would be impossible to specify any contact man’ (op. cit.). At the CCIC meeting the following year problems regarding direct communications between police officers at the operational level again surfaced in the context of discussions about controlling pleasure sail­ing in coastal waters and in the context of importation of stolen vehicles (CCIC, Chelmsford 7 April 1971). It emerged in these discussions that a great deal of information sent to France was not being disseminated to the relevant services information to the central directorate in Paris’ (p. 77). Prior to 1972, the RG did frontier policing which was then taken over by the Police de l’Air et des Frontières, which was itself reorganised in 1995 and re-christ­ened, more aptly, the Direction Centrale du Contrôle de l’Immigration et de la Lutte Contre l’Emploi des Clandestines. 18  The Interpol Headquarters moved to Lyon in 1989. 19  M. Anderson, Policing the World (Oxford 1989). 20  The men who became Interpol General Secretaries during this period all had experience as officers in the Sûreté or its successor the unified Police Nationale. In 1986, French domination of the organisation was replaced by Anglo-American hegemony. This appears to have had little effect on the pre-occupation of Interpol within the context of the CCIC, as we shall see. 21  P.J. Stead, The Police of France (New York 1983).

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there and, further, that both Belgium and the Netherlands were not receiving relevant information from France. The point was reit­erated that, while it was thought appropriate that routine or minor information was passed di­rect between interested parties, Interpol was regarded as the essential communications link between police forces for information of an official nature. It was thought that more work needed to be done to create firm contact points with French police officials, but this conti­nued to be a matter of difficulty. This brief discussion shows that transnational policing has been the achievement of a highly complex institutional mélange. This organisational accomplishment was by no means easy to orchestrate. However research has shown that police subculture, regardless of na­tional peculiarities, is infused with a strong sense of mission. Added to this were perceptions of pressing trans-border crime problems and a somewhat laisser-faire approach to regional trans-border policing by (at least some) central authorities. This created a climate in which police efforts at transnational networking could fructify. However, given the organisational complexity of this initiative, how did transnational policing actually work? That can be shown most easily by looking at long-running cases of transnational police work.

4. Transnational Policing in the Age of the Telex Machine 4.1. Transnational Policing as Communications Policing It is apparent from the above discussion that representatives of various police agencies met on a regular basis and that this meeting formed the nucleus for transnational policing in the Channel region. Peter Manning (1992) has suggested that a central question in organizational analysis is the role of communication in creating and maintaining organizational structure. This question has been answered in the past almost entirety within the rhetoric of rational and formal organizational communica­tion. The role of informal communication has been eschewed or seen as an obstruction to achieving the ends of the organization. This is clearly false, since informal aspects of organizations can facilitate or not the ends of the organization, and formal communica­tion can either serve these ends or obscure and confound them.22

In this section we will consider the modes of communication that emanated from, and or­ganised, the CCIC. Both formal and informal communication is at issue here. Communica­tion in the context of the CCIC meetings was considered in the previous section. For the full potential of this transnational police initiative

22 

P.K. Manning, Organizational Communication (New York 1992), p. 73.



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to work, more elaborated communications streams, incorporating both formal and informal methods, needed to be developed and en­hanced. As this process moved forward a range of practical problems began to emerge. One cen­tral question was the degree to which Interpol could, or would, deal with ‘low-level intel­ligence’. For example, what would be an appropriate action in cases where known criminals were identified when passing through frontier controls; or what to do with names, addresses or telephone numbers found in the possession of offenders when arrested on foreign soil; or, indeed, how to notify the home country when a foreign national was arrested in a country not his own? In all these instances it was not immediately clear who would be the relevant police authority to use as a conduit for information. It was also quite clear that the Interpol channels were not ideal, in part because such a large potential volume of information traffic had the capacity to overwhelm its system. This potential partly emanates from the centralised nature of the Interpol system which makes for long lines of communication and slow reaction times.23 Matters were settled somewhat in 1973 when three guiding principles were set down (CCIC, Rotterdam, 20–21 September 1973), The first of these was that urgent operational in­telligence could be passed directly between forces participating in the CCIC, but that infor­mation to forces outside the organisation would travel through established international contacts, that is: Interpol. In instances where there was direct force-to-force communication, it remained the responsibility of each individual police agency to notify their respective Inter­pol NCB. It was also recognised that, on occasion, criminal intelligence would illuminate the need for a trans-border police investigation over a protracted period of time. ill such circum­stances it was deemed appropriate for multi-jurisdictional meetings to take place at appropri­ate levels for both strategy and operations. Lastly, Interpol channels were held to be the only appropriate means for circulating information such as photographs, fingerprints, criminal rec­ords or any other criminal intelligence required in investigations pertaining to travelling criminals. This was reiterated five years later (CCIC, Pas de Calais, 23–24 May 1978): During the discussions which have taken place since 1969 at the various meetings of the Cross-Channel Intelligence conference, certain points of view have been expressed with regard to the aim of these meetings in the context of international co-operation and particularly in relation to Interpol’s role in this field … the 23  Morse code remained the principal method of communication between NCBs until the 1980s. This remained the case even after Interpol obtained telex machines – as Andre Bossard the General Secretary at the time explained it, ‘Morse messages cost nothing’ although he also acknowledged that this mode of communication was far from dependable (F. Bresler, Interpol (London, Madarin 1992). Interpol London only replaced telex communi­cation with electronic mail in the early 1990s (PRSU (Police Requirements Support Unit), Bulletin 42 (London 1992)). In short, Interpol was technologically backward during the first three phases of the development of transnational policing in the Channel region.

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james sheptycki Interpol Secretary General considered that the basic aims of the conference had been clearly defined. In­terpol fully accepted the principle of border contacts which should, however, fit in har­moniously with the general framework of co-operation organised by Interpol … it appears that the participation of representatives from the Interpol General Secretariat and from the National Central Bureaux of the countries concerned … can only be ad­vantageous to all parties.

At this time most police-to-police communication in the Channel region took place in person. There was telex-link between the police in Bruges and Kent and the telephone was always available, both of which offered convenient ways to convey relatively short messages and to arrange meetings. But it is apparent that most of the detailed communication took place in face-to-face meetings. To illustrate this it is useful to examine a successful transnational police operation. 4.2. A Case of Transnational Policing A group of drug traffickers were identified at the meeting of the CCIC in 1977 (CCIC, Maidstone, 10–11 May 1977). This was the beginning of a transnational police investigation that was to take nine years to bring to its full conclusion and was to span half the globe.24 At the time, however, appearances pointed to something very much less grandiose. Dossiers con­taining full names, and details of the organisers and persons known to act as couriers and ‘front men’ for the organisation were circulated at this meeting. It was revealed that one of the couriers associated with this group had been arrested at the port of Dover in July 1976 in possession of 40 kilos of Lebanese Cannabis. As a result of information gleaned from inter­rogation of those arrested, it was known that this trafficking operation extended to southern Holland, and that a staging-post in Brussels had also been used. It was thought that individ­uals in Amsterdam were involved. Police officials from the Kent, London, and Essex drug squads, together with UK customs officials had been responsible for what was characterised as a limited success. It was determined that a concerted effort using members of different na­tional police forces was necessary to fully investigate the activities of this group. One year later, there was reported further success with some 70 persons being arrested in Belgium mostly in possession of small quantities of amphetamine obtained in the Nether­lands (CCIC, Pas-de-Calais. 23–24 May 1978). These arrests brought to light an amphetamine laboratory located near the Belgian-Holland frontier. In the summer of 1977 a police search in one of the larger towns in Kent uncovered a tablet press machine used in the manu­facture of illegal amphetamine The network of transnational police that grew up in thc Channel region has undertaken hundreds of cases of a variety of crime types, since 1968. This particular case was chosen because it illustrates a wide range of issues pertinent to cross-border policing generally. It is accurate in its broad outline, but it has been expurgated in order to preserve the integrity of police operations and to protect the innocent. 24 



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pills. The CCIC minutes of 1978 reported that a large quantity of amphetamine powder had been brought over from the Netherlands and turned into pills using this machine. Further, intelligence linked the drugs to the laboratory identified by the Belgians. The occupants of the house in question were also connected with the importation of over 100 kilos of cannabis resin. Thus it was established that the case involved the supply of both cannabis and amphetamine through a network that spanned three countries. Arrest Warrants for conspiracy to supply drugs and other connected offences were circu­lated for four individuals one year later (CCIC, Chelmsford, 15–16 May 1979). The minutes for this meeting are revealing of the conduct of this transnational police investigation. It was during the previous yeas that the investigation had been formalised enough to warrant a name which, for reasons of confidentiality, cannot be revealed here. For the purposes of analysis it will be referred to as ‘Operation Enterprise’. From the 1979 Minutes it is apparent that long periods of observation at a number of locations and focusing on a number of persons were undertaken in all three countries. It seems that the police observation relied on a variety of technical means, including, but not limited to, 24-hour surveillance teams, video surveillance, the monitoring of border crossings and other international travel. Minutes from later con­ferences (CCIC Chantilly, 28–30 May 1984; CCIC, Rotterdam, 14–15 May 1986) reveal that intensive surveillance was ongoing. Further, in the context of arrests undertaken in Belgium and England, written correspondence and other material were seized in evidence. It seems that Belgian police only arrested their own nationals who were operating on home territory and the same applies for the arrests made by UK police (who reportedly arrested and charged over 100 English persons). However, police in the Netherlands made a number of arrests of British nationals connected with this network. For example, in 1978 two Englishmen in charge of an articulated lorry with over two hundred kilograms of cannabis secreted on-board were taken into custody. Later analysis of various documentation revealed that a total of twenty such trips had been made with this vehicle. Operation Enterprise was wound up in 1981. At that time several individuals who had been identified as central to the network of supply had eluded police custody but, with no further information to proceed with, the case was closed. The police operation was unexpec­tedly brought back to life in 1982 when one of these individuals was arrested in Amsterdam on an unrelated matter. Difficulties in arranging extradition of this person to the UK for prosecution in connection with the drug smuggling offences revealed the extent of legal bar­riers between the UK and the Netherlands. UK police originally thought to extradite this per­son on a charge of conspiracy to import drugs. However, it was later recognised that such a charge could not be used as the basis for extradition since conspiracy was not recognised in Dutch law. British police consequently had to prepare

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the entire file to show and prove indi­vidual offences of importation and supply of drugs, which was both difficult and time con­suming. Nor did the need for police co-operation end there because, after successful extradition was achieved, Dutch police had to be called upon to locate witnesses and convey them to the UK to give evidence. In late February 1984 a letter from the Interpol NCB in New Delhi was received in Lon­don. Thus began the final chapter in Operation Enterprise. This letter was to inform Interpol (London) of the arrest in India of two British nationals who were in possession of more than one tonne of cannabis which was being prepared for export. One of the people identified in this letter was recognised by UK police to be a principal organiser in the network targeted by Operation Enterprise. Because of this arrest and the seizure of a number of passports, investi­gators in Europe were able to retrospectively trace the activities of this group across Africa, southern Europe and India. The individual of interest in the CCIC investigation apparently escaped police custody in India and fled the country using a false passport. Fortuitously, this individual was apprehended in Amsterdam in the following year when he was identified dur­ing the course of a surveillance operation into an unrelated case involving stolen art. In the end it was clear that the police in the CCIC network had been investigating a transnational criminal network which, over the course of time, had grown to have a sizeable annual turn­over and an impressive geographical reach. From the details of this series of investigations, it is clear that there was a free circulation of relevant information about this chain of drug supply amongst the various police officers involved. However, once Operation Enterprise spread outside of the UK, success depended in part upon being able to co-ordinate action with police forces in other countries in a legal manner. Several conferences with the Director of Public Prosecutions and senior legal coun­sel were held in London resulting in the drawing up of a number of Commission Rogatoire.25 During the course of these enquiries many British police officers travelled to the Netherlands, Belgium, France and Spain (up to eight at anyone time) armed with these authorisations. Ad­ditionally, several conferences were held in Belgium, the Netherlands and the UK, which in­cluded not only supervisory police officials, but also representatives of Justice Departments and other judicial-type officials. These conferences served two functions. One was the circu­lation of relevant 25  Commission Rogatoire are legal documents that request that investigations take place on the hearer’s behalf. These ‘letters of request’ typically contain a summary of the case and purpose of the request to the foreign country, including details of alleged offences under investigation (and citing ‘reasonable grounds’) as well as details of the persons named in the request and any evidence required. They may also ask that representatives of the requesting authority are present when evidence is gathered, arrests are undertaken or interviews take place. Actual ‘hands on’ police work is, however, left to locally competent authorities.



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information and the second was the negotiation of legal barriers to evidence sharing in order to facilitate arrests and successful prosecutions. Although this formed the core of the investigation, it is also clear, that information from peripheral investigations and from peripheral agencies had to be incorporated into the body of knowledge that carried the operation forward. Operation Enterprise brought to light a number of barriers to transnational police oper­ations associated with the doctrine of legal sovereignty. For example, several Dutch nationals were thought to have links with drug distribution networks in southern France but, despite what was regarded as sufficient evidence and close co-operation between police, a successful conclusion to inquires was hampered by the lack of an extradition treaty for drugs offences between the two countries (CCIC, 15–16 May 1979). The lack of an extradition agreement has since been addressed, but at the time the relevant individuals could only be brought into custody in the Netherlands, Belgium, or the UK (the latter two did have extradition treaties with France). The records of the CCIC do not reveal that arrests were ever made and it is ap­parent that these problems with the legal framework preoccupied police decision-making. It appears that legal sovereignty hampered other aspects of the investigation, for example, it was also reported that inquires in Spain ‘were the most complicated due to their legal viewpoints.’ (CCIC, Chantilly, 28–30 May 1984). The fact that no arrests were made in that country and no evidence obtained in that jurisdiction was used as evidence for prosecution (although it reportedly helped with the conduct of the investigation itself) suggests that these legal barriers were not overcome during the life of this enquiry. Enquiries eventually ranged as far afield as southern France, Spain, Switzerland, Germany, the Bahamas, both the west and east coasts of Africa, and India (CCIC, Chantilly, 28–30 May 1984; CCIC, Rotterdam, 14–15 May 1986). These documents are careful to point out that co-operation between police officials was always forthcoming, but it is also apparent that legal barriers hampered investi­gations. Officers involved in this operation concluded that: A greater understanding of daily problems facing the various Police forces has been achieved [as a result of Operation Enterprise]. It is quite clear that without the personal visits to various countries and reciprocal visits here by foreign officers an international investigation is beyond us … The successful investigation of Drugs Trafficking can only be accommodated with the fullest co-operation of all agencies charged with this responsibility. This is imperative at local level, national level and international level … The officers engaged in Operation Enterprise received the fullest co-operation from the various agencies in all the countries in which enquiries were dealt with. It is important to state however, that the most important and effective form of liaison was that con­ducted at a working level which permitted the exchange of information whilst necess­ary legal requirements were being resolved in appropriate cases (CCIC, Chantilly 28–30 May 1984).

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This case of transnational police work illustrates a number of points. Firstly, partially effec­tive police investigations can be orchestrated across international boundaries on the basis of the exchange of criminal intelligence alone. As the arrests undertaken in several countries show, proceeding against crimes committed in a particular enforcement jurisdiction poses few problems for police, even if an aspect of the crime is transnational. Secondly, effective police work can be done on an international scale through direct police-to-police communica­tion, without a permanent over-arching bureaucratic institutional framework, by networks of relevant officers wherein communication is largely informal. As these records show, this in­vestigation proceeded informally and, at least partly, on the basis of serendipity. Formal lines of communication only became necessary at specific junctures during investigations in order to facilitate the exchange of the evidence, salient materials and documents pertinent to crimi­nal proceedings. Thirdly, it is evident that the fragmented legal frame is problematic and, while police do their utmost to overcome such legal barriers, this raises thorny questions of jurisprudence. For example, who decides in which enforcement jurisdiction arrests and pros­ecution should be undertaken when standards of evidence and severity of punishment vary across national territories? Fourthly, transnational police investigations are an incremental enterprise; marginal successes arc continuously built upon and new communications linkages are constantly being made. In this regard, it is interesting to note that, as a result of Operation Enterprise, a British Police Liaison Officer was appointed to work in the Hague on a perma­nent basis from April of 1984. This officer was to create a permanent link between British and Dutch police institutions as well as liaise with Customs officials in the Netherlands. Thus, informal communication can lead to formalisation. These developments are instructive. Democratic police practice is most often understood in the academic literature as circumscribed by national territory, its communications practices are largely limited to highly formalised internal and external communications in pursuit of ‘crime control through due process’.26 Even where informal communications are stressed27 the possibility of police action that transgresses state boundaries has not been addressed. And yet, developments in the English Channel region between 1968 and 1986 clearly show evi­dence of transnational police relations that were unthinkable only a short time before.28

D. McBarnet, Conviction: Law, the State and the Construction of Justice (London 1981). P.K. Manning, op. cit., quoted above. 28  See M. Anderson, ‘The French Police and Co-operation in Western Europe’, in C. Fijnaut, ed., The Internation­alization of Police Co-operation in Europe (Deventer 1993), p. 26. 26  27 



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5. Phase Three – Transnational Policing and the Politics of Eu­rope In the years after 1986 the nature of the CCIC meetings began to change. Discussion about legal barriers, and explanations about various police systems and liaison arrangements be­tween them had always been a feature of the meetings; in no year was the exchange of intel­ligence or debriefing about successful operations the exclusive concern of the conference, but in the lead up to the European single market the balance of preoccupations at the conference began to change. What police wished for, in the words of one member of the Belgian Police Judiciaire, was a police institution with operational powers across the whole of western Eu­rope and a unified legal frame for police work therein, but ‘if wishes were horses beggars would ride’ (CCIC, Westcliffe-on-Sea, 16–18 May 1989). This officer noted that while, in the recent past, merely imagining ‘extending European interests to such matters as the struggle against terrorism, drug trafficking and organised crime was more often than not considered a back striking calumny against national sovereignty’ European-wide policing was clearly on the agenda. According to his analysis, the general concern was the arrival of the European Single Market and the consequent erosion of borders. A particular concern for the region was the completion of the Channel Tunnel project which created the need for new, and unique, policing arrangements. True, the arrival of the TREVI system in 1975 (in response to Euro­pean-wide terrorist activity which Interpol had been reluctant to handle) began the process that would turn policing into a political issue at the European level. But it was the develop­ment of the European Union in the latter half of the 1980s which consolidated that process and made it relevant for ordinary law crimes. At this time, French police delegates outlined the state of liaison arrangements and made proposals for future development (CCIC, Rouen, 15–17 May 1990). What they described was, by this time, a well entrenched local transnational police network. The Director of the PAF at the Pas de Calais noted that his organisation had developed a liaison officer position and that French police paid regular weekly visits to the UK. He also pointed to the good rela­tions his liaison officers enjoyed in the Netherlands and Belgium. However, there was a case for extending these contacts. In connection with the planned Channel Tunnel, there would most likely be a permanent presence of French and British police on each other’s side of the Channel. This officer reported that numerous meetings had already been held ‘to best or­ganise the future co-operations and interpenetration of our services when the Channel Tunnel becomes operational’ (ibid.). During these meetings, and for the first time, representatives of the French Gendarmerie Nationale were brought into the transnational police structure. But there was a greater need, and it was argued that ‘pending the harmonisation of present

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legis­lations in the EEC countries on the major problems faced by the various police services … the development of international co-operation is necessary’ (ibid.). The designation of a French Liaison Officer in London by the General Director of the Police Nationale and the Ministry of the Interior was a signal of things to come. It was suggested that foreign liaison officers from the various forces should be reciprocally stationed at the office of either the Director­General of the Police Nationale in Paris or the Headquarters of the Police de l’Air et des Frontières, also in Paris. Fears were expressed by other delegates that too many such officers operating at too many different levels might foster confusion. A Belgian delegate noted that Interpol had designated 17 European liaison officers of its own. A Dutch police officer representing the Interpol NCB in the Hague also noted the existence of both TREVI and the Schengen as vehicles for police co-operation. This officer felt that, because of the complexity of arrangements that existed in Europe for transnational policing ‘the CCIC should remain a meeting between colleagues and could not go over certain limits without committing errors or losing its prime goal’. One of the British delegates argued that it would be impossible to multiply the number of liaison of­fi cers according to the number of crime specialisations and jurisdictions, he maintained that ‘direct contact between officers who know one another is more profitable’ (ibid.). These issues emerged again the following year. The Head of the United Kingdom Interpol NCB noted: There is a very grey area with regard to who can do what in relation to overseas en­quiries and whilst both Interpol as an organisation and the office of Interpol London fully recognises that good work carried out under the auspices of cross channel liaison, it must also be recognised that there is a need for a central point through which all major crime enquiries concerning that countries should pass or at least be supervised from. In fact the United Kingdom will shortly ratify the European Convention on Mu­tual [Legal] Assistance of 1937 (sic) and all such enquiries must pass through the nominated central authority for the United Kingdom. This is the Home Office or in ur­gent cases the Interpol bureau. This will not of course prevent purely local co-operation matters to continue on a cross-border basis (CCIC, Sussex, 14–16 May 1991).

Discussion about conduits for information between differing police forces in different coun­tries showed that old institutional barriers remained. For example, French delegates from the Police Judiciaire reported, in somewhat opaque terms, that ‘problems have been experienced when the Gendarmerie has taken control of international enquiries and subsequent difficul­ties have taken place’ (ibid.). These quotidian problems of communication between the two national police services in France meant that communication at the regional level was deemed inappropriate; all enquiries were to be routed through the National Central Bureaux. In Belgium there were difficulties since international enquiries were



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formally supposed to be routed through local Magistrates offices, then to the national level, and then on to foreign authorities. Incoming enquiries were expected to follow the reverse procedure. This had cre­ated problems on one occasion when enquiries had been made by UK Customs direct to local police in Belgium. Police in the UK revealed that they had difficulties in co-ordinating police-customs liaison at local or regional level, although co-ordination at the highest levels was thought to be quite good. At this time both the establishment of NCIS in the UK and police reorganisation in the Netherlands were still some two years in the future. Thus, in spite of a decade and a half of successful co-operation, it was clear that the administrative frag­mentation, upon which the co-operative enterprise was built, continued. These fault-lines were not erased as national governments moved to reassert sovereign control over police operations, either by multiplying transnational police infrastructures at the intergovernmental level (TREVI, or later Europol), or reasserting the place of central police authorities, and/or the role of Interpol. Delegates from the various Interpol NCBs put much importance in technical develop­ments for police communications, especially the expected installation of the Automated Search Facility. This was the latest in a series of technological upgrades achieved by Interpol since the mid-1980s when a new President (a former head of the US Secret Service), ushered in the era of Anglo-American predominance. With American money Interpol went ‘from Morse code to e-mail almost overnight’.29 But Interpol was not the only information broker in northwestern Europe; there was also the projected Schengen Information System, al­though the UK was not a signatory to this treaty. The idea of Europol was also being floated at this time. This gave rise to discussions about how information circulation could be control­led in these large data handling systems. The major worries were how to ensure accuracy of data and how to ensure that its circulation was only on a ‘need to know basis’.30 However, these technological advances were years in the future and advances in data storage and com­munications in the Channel region itself proved to be in place much sooner. While the technical developments in communications, data storage and information retrie­val seemed to hold out the promise of further enhancement of the transnational police enter­prise, the organisational infrastructure within which the police ‘information revolution’ was taking place was predictive of a less certain outcome. Transnational policing in Europe has been built on the foundations of fragmented national police systems. When the policing en­ terprise becomes elevated above the level of the nation-state, that fragmentation PRSU, op. cit. K. Robertson, ‘Practical police cooperation in Europe: the intelligence dimension’, in M. Anderson, M. den Boer, eds. Policing: Across National Boundaries (London 1994). 29  30 

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is extended and the existence of the various macro-level transnational police bodies (Europol for example) only contributes to further segmentation.31 The projected structure for control of the European Monetary Union provides something of an analogy here. With regard to mon­etary union, the technicalities envisaged for policy co-operation will not be simple. The Euro­pean Central Bank will control monetary policy; EMU’s finance ministers will have a say on exchange-rate policy; and fiscal policy will (within limits) stay in the hands of individual governments. This is indeed a complex arrangement and, prior to monetary union, there has been considerable scepticism about its viability. The analogous structure is even more com­plex in the case of police co-operation. This is partly because, while each country has but one central bank and a legal framework for it, they do not have one central police agency, and this remains the case in spite of some changes in some countries (notably the Netherlands) over the recent past. Further, the legal frame for transnational policing is more kaleidoscopic than that for fiscal policy due to the complex inter-relationship between various national legal traditions and supra-national legal instruments in the criminal law. Still, the sense of police mission drives further innovation forward. This is evident in the recent phase of development of the transnational policing in the English Channel region.

6. Phase Four – Local Transnational Policing In early 1991 Kent County Constabulary re-evaluated its liaison capabilities in the English Channel region. It was noted that relations with their counterparts in Calais were very good, especially with the PAF and the Police Judiciaire. Police liaison between the two areas had been put on a formal basis in 1989 when the first in a series of meetings between the Chief Constable of Kent and the Préfet du Pas-de-Calais went ahead. This consolidated police rela­tions at the highest regional levels, and reaffirmed the existing cross-border liaison arrange­ments. Planning for the Channel Tunnel, (enabled by legislation in both the UK and France) with respect to rescue, public safety and emergency operations, as well as frontier controls, security, crime control, telecommunications and operational procedures were advanced at these meetings. These discussions were duplicated at a series of meetings between oper­ational level police personnel where the actual details of day-to-day operations were thought through. At the same time, developments for police co-operation between national govern­ments at the macro-level were recognised as having important implications for transnational 31  J.W.E. Sheptycki, ‘Transnational Policing and the Makings of a Postmodern State’, 32/4 British Journal of Criminology (1995), pp. 613–635.



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policing regionally. CCIC participants concurred with the suggestion that the advance to the European Single Market would amplify the long-standing problems of cross-border crime. An upturn in the amount of transnational police work was foreseen by all. It was concluded that some organisational adaptations by the Kent County Constabulary (KCC) needed to be made in order to keep pace with the rapidly changing situation. Accord­ingly, the European Liaison Unit (ELU) was created. This was an amalgamation of already existing police functions. In particular, the work of liaison officers in the Criminal Investiga­tions Department (CID) and the Special Branch Ports Unit was brought under one roof. The functions of the Cross Channel liaison officer were housed in this unit alongside the com­bined European/Interpol liaison officer. The ELU created a data base pertaining to all cross-­border police enquiries and, in co-operation with the KCC Central Intelligence Bureau (CIB), a separate data-base pertaining to known offenders in the region with cross-border crime con­nections was created. Thus, KCC simplified its arrangements for cross-border policing in the region, bringing all functions that could conceivably bare relation to the task under one roof and formed a central nexus for criminal intelligence exchange. The ELU, housed at Folkestone on the site of the Channel Tunnel terminal, became a cen­tral communications nexus for policing in the entire Channel region. This unit facilitates en­quiries relating to the whole range of police work including: the location of lost or stolen property, aspects of emergency service, translation service, acting as a conduit for criminal intelligence in protracted transnational criminal investigations and much more. It allows for the dissemination abroad of information pertaining to criminal records and other relevant in­formation contained on a wide variety of data bases, from local intelligence offices anywhere in the United Kingdom, to the national records held on the Police National Computer (PNC) and the Driver Vehicle Licensing Centre (DVLC). In exceptional circumstances the officers of the ELU can also obtain phone numbers for foreign officers through directory enquiries and access a host of other sources of information. It also acts as a conduit for information from abroad into relevant police contacts within the UK, including NCIS. This information exchange is accomplished over the phone/fax network whereby enquiries from as far away as Switzerland, Greece, Spain and Gibraltar can be handled as easily as those from near neigh­bours. The main bulk of the work, however, continues to emanate from the English Channel region itself.32 Many An interesting issue emanates from this service delivery, since the consumers of the service are not necessarily residents of Kent County or even of the United Kingdom. This raises questions about charging arrangements for information brokerage. It is technically possible that this service could be pay per message basis, heavy users of the system would then have costs proportionate with the use value they extract. 32 

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police agencies in the region that have a part to play in the police mission, including some that have not participated in the CCIC – the Gendarmerie in both Belgium and France – have been incorporated into this communications network. But police communications are moving beyond the telephone into the electronic communication. Since 1990, the ELU has been co-operating in the development of the Linguanet, an e-mail system which, by 1996, blanketed the entire region from Rotterdam in the west as far north as Felix­stowe in Essex, down to Lille and Bruges in the south and as far east as Folkestone on the English side and Boulogne in France.33, 34 The information revolution has routinised the exchange of criminal information. So much so that the role of the CCIC is now in question. It no longer appears to be the forum for the exchange of criminal intelligence it once was. Where in the early 1970, the CCIC minutes very often contained details of dozens of criminal enquiries the minutes for 1996 contained only one case (pertaining to a serial sex offender who, it was believed, had fled England for Belgium). The remainder of the discussion was given over to matters relating to technical in­novations such as an automated number plate recognition system for use at the ferry termi­nals, or descriptions of various and seemingly innumerable organisational changes in participating police agencies, as well as considerable debate over the constitution and terms of reference of the CCIC itself. In a way the CCIC has been a victim of its own success.

7. Conclusion This paper has partly been about historical beginnings. It is an attempt to chart the develop­ment of police co-operation in the English Channel region over a period of almost thirty years. Fragmentation has been a prominent feature of the literature on transnational policing in Europe and the analysis presented here has confirmed this. At the same time, this has not prevented the establishment of a genuine transnational police enterprise in the Channel region enabled by and enacted through technological innovation in the field. Communications be­tween police agencies is here seen as the very essence of transnational police co-operation. This raises questions of a jurisprudential nature since we can see only ‘a possible future, a distant vision, where a clear system of European criminal justice will be established’.35 Over­coming the segmentation imposed by differing Policespeak, Police Communications and Language and the Channel Tunnel (Cambridge 1993). There is a comparable development in the Limburg region referred to as the PALMA Project, which stands for: Police, Aachen, Leige and Maastricht. This electronic mail system networks police agencies in these cities and will certainly expand. Both the PALMA Project and the Linguanet system use the same data transfer protocol, so that it is technically possible for them to be inter-connected in the future. 35  C. Harding, P. Fennell. N. Jarg, B. Swart, Criminal Justice in Europe (Oxford 1995) p. xvi. 33 

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systems of national law is a practical problem of day-to-day policing, but efforts at criminal law harmonisation (such as the Schengen Treaty – to which the UK is not a signatory anyway) offer no guarantee of homogeneity since it leaves the responsibility of interpretation in the hands of national judicial authorities who bring to bear their own, parochial, legal paradigms.36 Hence, fragmentation remains the abiding characteristic of the transnational policing sys­tem and is likely to do so for the foreseeable future. Some practitioners argue that the coming of Europol will contribute to the homogenisation of police communications and knowledge transfer,37 and therefore of the system of European policing, in advance of legal harmonisa­tion. This seems unlikely, since any practical transnational policing infrastructure will be formed as a nexus of already existing institutions – macro level structures (for example Euro­pol) merely add another administrative level to an already complicated system. The likely outcome is an increasingly complex patchwork quilt of agencies intended to provide a blan­ket of security. Any such patchwork is likely to be stitched together by the efforts of police officers at the most basic level of their respective organisations. It is at this level that the need for a unified legal frame is most pressing. When operating over a range of enforcement juris­dictions there is an absence of a legal ‘metanarrative’. In effect, operational officers conduct­ing transnational investigations are coping with policing problems under postmodem conditions. Thus, the developments described in this paper offer a strong incentive to articu­late a post-modern jurisprudence. .

C. Joubert, H. Bevert., Schengen Investigated (The Hague 1996). W. Bruggeman, ‘The State of Co-operation between Relevant Authorities within the E.U. Framework’ 2/3 Trends in Organised Crime (1997), pp. 57–61. 36  37 

Policing across a Dimorphous Border: Challenge and Innovation at the French-German Border1 Detlef Nogala Dr. phil, Research Fellow, Max-Planck-Institute of Foreign and International Criminal Law Freiburg i. Br., Germany

1. Introduction Recently, there has been much discussion concerning the process of ‘globalisation’, both in academic circles and the media. Often the buzz-word ‘globalisation’ is taken as the common denominator of a number of dynamic socio-economic transformations and political adjustments, some of them are considered as accumulations of long lasting historical developments.2 Against the background of the tremendous progress of production forces the political dynamic of the 20th century has left us with a situation, where free trade, ubiquitous mass mobility and globe-spanning telecommunication systems have created something like a ‘global village’, where it has become, from an economical or sociological point of view, more difficult to differentiate precisely between single national societies. The integration of numerous local, regional and national economies, the convergence of modern media cultures and last but not least the multiplicity of encounters with people in their diverse roles, have led to a new level of interconnection of 1  This is the revised version of a paper presented at an Interlabo of the Groupe Européen de Recherches sur les Normativités (GERN) on ‘Regional Configurations of Cross-Border Police Cooperation’ held at the Max-Planck-Institute of Foreign and International Criminal Law, Freiburg, i.Br., 27 October 2000. The findings of this paper are interim results of an on-going research project in cooperation with my French colleague Atzilis Maguer on cross-border police cooperation at the French-German border within the framework of the Laboratoire Européen Associé (LEA), a joint research effort of the Max-Planck-Gesellschaft and CNRS. 2  See among others G. Therborn, ‘Globalizations. Dimensions, Historical Waves, Regional Effects, Normative Governance’, 15 International Sociology (2000) pp. 151–179; I. Wallerstein, ‘Globalization or the Age of Transition? A Long-Term View of the Trajectory of the World-System’, 15 International Sociology (2000) pp. 249–265. More theoretical ambitious discussions about globalisation effects can be found in M. Castells, End of Millennium. The Information Age: Economy, Society and Culture, Volume III (Oxford 1998) and W. Bonß, ‘Globalisierung unter soziologischen Perspektiven’, in R. Voigt, ed., Globalisierung des Rechts (Baden-Baden 1999/2000) pp. 39–68.

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social motives and activities. However, this peculiar opening of the world and its opportunities comes with a drawback: in the very moment of de-regulation and overcoming traditional borders, new risks may arise and established solutions for dealing with known hazards could become obsolete; thus forcing the search for other, innovative governmental answers to all kinds of insecurities. There is little doubt, that the hegemonious political mastercode of the free movement for capital, goods and people only comes with constant, unpleasant undertones: For the wealthy quarters of the global village exporting the western way of life to the outskirts might be connected with the import of consequences of distant neighbours’ social conflicts. The most often recited and notorious verse of all popular ‘globalisation-blues’ has been the warnings about increasing cross-border, transnational, spontaneous as well as organised crime.3 As crime is still considered mainly a matter of law enforcement, the universal response to this perceived threat has been almost everywhere: ‘more and enhanced police cooperation across national borders!’. While the discourse on ‘globalisation’ for the majority of criminologists, legal experts and police strategists seems to boil down to issues of transnational organised crime, threats of illegal immigration and required legal adjustments, it has noticeably produced a growing body of literature about the practical necessities and possible pitfalls of cross-border and international police cooperation, especially within the process of the development of the European Union.4 3  Legal experts, criminologists and police managers have written extensively on this development. Compare H.-J. Albrecht, ‘Transnationale Kriminalität als Folge des Umbruchs und kriminalpolitische Konsequenzen’, in K. Sessar and M. Holler, eds., Sozialer Umbruch und Kriminalität (Pfaffenweiler 1997) pp. 227–266; S. Karstedt, ‘Globalisierung und transnationale Kriminalität. Zum Erfolg “archaischer” Strukturen in der illegalen globalen Ökonomie’, in G. Schmidt and R. Trinczek, eds., Globalisierung. Sonderband Soziale Welt 13 (Baden-Baden 1999) pp. 259–272, and G.W. Wittkämper, P. Krevert and A. Kohl, Europa und die innere Sicherheit. Auswirkungen des EG-Binnenmarktes auf die Kriminalitätsentwicklung und Schlußfolgerungen für die polizeiliche Kriminalitätsbekämpfung (Wiesbaden 1996). See also the contributions in W.F. McDonald, ed., Crime and Justice in the Global Village: Towards Global Criminology (Cincinnati 1997) and P. Clay, ‘Taking Transnational Crime Seriously’, Volume Three International Journal of Risk, Security and Crime Prevention (1998) pp. 93–98. An good example of the police’s perspective is given by L. Borer, ‘Globalisierung von Gesellschaft und Wirtschaft. Wie reagiert die Polizei?’, 51 Kriminalistik (1997) pp. 289–294. For a critical reflection on the discussion see S. Krasmann and W. Lehne, ‘“Organisierte Kriminalität” im Windschatten der Globalisierung legaler und illegaler Märkte’, 36 Vorgänge (1997) pp. 106–119. 4  A useful oversight over the literature can be found in G. Renault, J. Vanderborght and L. v. Outrive, ‘La Collaboration Policière Internationale en Europe’, 20 Déviance et Société (1996) pp. 173–192 and M. Anderson, M. den Boer, P. Cullen, W.C. Gilmore, C.D. Raab and N. Walker, Policing the European Union. Theory, Law, and Practice (Oxford 1995). See also J. Benyon, ‘The Developing System of Police Cooperation in the European Union’, in W.F. McDonald, ed., op. cit., pp. 103–121; M. den Boer, ‘Internationalization: A Challenge to Police Organizations in Europe’, in R.I. Mawby, ed., Policing across the World (London 1999) pp. 59–74; N.C. Walker, ‘The New Frontiers of European Policing’, in M. Anderson and E. Bort, eds., The Frontiers of Europe (London/Washington 1998) pp. 165–186, and J.W.E. Sheptycki, ‘European Policing Routes. An Essay on Transnationalisation, Policing and the Information Revolution’, in G.J.N Bruinsma and C.D. van der Vijer, eds., Public



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However, within the academic literature there seems to be an apparent predominance of dealing with aspects of police cooperation seen under the perspective of political and legal treaties and negotiations on a supranational level of powers. ‘Europol’, ‘Schengen Treaty’, ‘Trevi’ or ‘Interpol’ are established key terms of the academic discourse on international police cooperation. Much less has been written about – although mentioned now and then – the local and regional levels of cross-border policing and ‘grass-root’ international police cooperation.5 Although there are plenty of reasons to deal in detail with the ‘high-policing’ aspects of international collaboration and its legal and political architecture, some crucial points of the practical side of police work might be missed, if one would ignore the transformation of high-level negotiations into the ‘real-life’ of police-organisations and the everyday work of officers. Another point for looking more into local and regional configurations of international police cooperation is, that there have been informal cooperative arrangements between police and customs forces for a long time (something what is called in German ‘kleiner Grenzverkehr’ and might be translated into ‘petty border traffic’),6 but that there

Safety in Europe (Enschede 1999) pp. 221–241. The German executive perspective is mirrored by the contributions of R. Rupprecht, ‘Internationalization of Police Cooperation in Western Europe: The German perspective’, in C. Fijnaut, ed., Internationalization of Police Cooperation in Western Europe (Deventer 1993) pp. 41– 48; C. Hoppe, ‘Internationale Kooperationsmaßnahmen. Interpol, Europol, Schengen und andere Gremien’, in Bundeskriminalamt, ed., Festschrift für Horst Herold zum 75. Geburtstag (Wiesbaden 1998) pp. 209–224 and W. Bruggeman, ‘Innere Sicherheit durch polizeiliche Zusammenarbeit in Europa in der Perspektive von Europol’, in P.C. Müller-Graff, ed., Europäische Zusammenarbeit in den Bereichen Justiz und Inneres (Baden-Baden 1996) pp. 133–142. More critical approaches can be found in H. Busch, Grenzenlose Polizei? Neue Grenzen und polizeiliche Zusammenarbeit (Münster 1995); L. Harings, Grenzüberschreitende Zusammenarbeit der Polizei- und Zollverwaltungen und Rechtsschutz in Deutschland (Berlin 1998) and T. Kattau, Strafverfolgung nach Wegfall der europäischen Grenzkontrollen. Eine Untersuchung der Schengener Abkommen (Pfaffenweiler 1993). An excellent comparative work in the European respect is H. Aden, Polizeipolitik in Europa. Eine interdisziplinäre Studie über die Polizeiarbeit in Europa am Beispiel Deutschlands, Frankreichs und der Niederlande (Opladen 1998). 5  The so far rare empirical research on cross-border police and customs cooperation is documented in M. Alain, ‘“The Trapeze Artists and the Ground Crew”. Police Cooperation and Intelligence Exchange Mechanisms in Europe and North America – A Comparative Empirical Study’, 11 Policing and Society (2001) pp. 1–17; J.W.E. Sheptycki, ‘Police Cooperation in the English Channel Region 1968–1996’, 6 European Journal of Crime, Criminal Law and Criminal Justice (1998) pp. 216–235; R. Jamieson, N. South and I. Taylor, ‘Economic Liberalization and Cross-Border Crime: The North American Free Trade Area and Canada’s Border with the USA’, 26 International Journal of the Sociology of Law (1998) pp. 245–272 (Part I), 285–319 (Part II); F. Jacob, ‘Les Douaniers Francais aux Frontières de la Sécurité Intérieure’, 19 Déviance et Société (1995) pp. 339–354; S. Brammertz, Grenzüberschreitende polizeiliche Zusammenarbeit am Beispiel der Euregio Maas-Rhein (Freiburg 1998); G. Hofstede, M. van Twuyver, B. Kapp, H. de Vries, M. Faure, F. Claus and J. van der Wel, Grenzüberschreitende Polizeiliche Zusammenarbeit zwischen Belgien, Deutschland und den Niederlanden unter besonderer Berücksichtigung der Euregio Maas-Rhein (Maastricht 1993). 6  For a description of local networking at borders see H.G. Berends and P. Ingenerf, ‘“Der Kleine Grenzverkehr”. Praxis der grenzüberschreitenden polizeilichen Zusammenarbeit’, in

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seems to be a new trend to institutionally establish or strengthen bilateral or multilateral regional cooperation arrangements. A good and possibly advanced exemplification of this tendency is the recently found arrangement for cooperative policing in the French-German border region. In the following, the paper will outline some features and aspects of this special governance example.

2. The Function and Failure of Borders In the age of globalisation, the notion of border seems to become rather outdated. If everything is ‘in flow’, all places are (in principle) accessible and everybody is embedded in networks and even in networks of networks – what sense do borders still make? Aren’t they a bad thing, when the (fast) exchange of resources, people, skills and experiences is seen at the core of creating wealth, culture and happiness? First of all: the concept of border is a basic social invention and has been considered as an early and in a way successful concept of social organisation. It marks and signals the transition of one state to another, somehow different condition, situation, status or circumstance. Sometimes this transition will be sharp or abrupt, sometimes smooth or gradual. In any case, borders help us to find orientation in a complex social and physical environment. While from a certain epistemological point of view every border (or boundary or frontier) is ‘mentally’ constructed, it might be useful in the context of the social sciences to distinguish between borders of material nature and those put up by (collective) social processes. In any case, borders define, what is ‘in’ and what is ‘out’, what belongs to and what is alien, what is possible and what is not or forbidden – in the widest sense: a border makes differences and generates common grounds (even unity under certain circumstances). Under its most established meaning, border is a concept bound to territory (or territoriality) and – connected with the existence of diverse social collectives – an essential tool of ‘governance’: in this sense, the border is a line, wherein a certain order can be established and prevail as long as it is not challenged or overturned.7 Borders set the frame for creating and enforcing rules. This is where the meaning of borders got its strength: it has to be understood as the line of demarcation between different governed territories, representing variations of rule and regimes of inclusion/exclusion (following certain criteria). At least with the creation of nation states, the state-border has become the Polizei- Führungsakademie, ed., Europäische Perspektiven der Verbrechensbekämpfung (Münster 1990) pp. 35–54. 7  For a more detailed examination of the deep meaning of borders, boundaries and frontiers see M. Anderson, Frontiers. Territory and State Formation in the Modern World (Cambridge 1996).



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incarnation of a basic tool of governance and administration of populations and territories. It is because borders represent lines of power and sovereignty, they had become the objects of bitter dispute and bloody conflicts since the invention of governmental rules.8 Because administrative borders are socially constructed and – as contested – shaped by historical events, they are to a certain extent fluid or even volatile – borders are changing all the time. The whole book of history could be read as a description of an endless row of setting-up, closing-down and moving borders. Contemporary examples are the ‘re-unification’ of Germany, the dissolving process of the USSR, or the struggles for autonomy vs. unity in Asia, Africa and Europe. Within the system of the so-called ‘new world order’ there seems to be a continuum of the ‘hardness’ of borders between ‘systems’: – After the provisional end of the ‘Cold War’ between the (capitalist) West and the (socialist) East, the ‘super-border’ of the world system has been replaced by the boundaries between rich (North/West) and poor (East/ South) populations. Hot spots of this latent ‘systems confrontation’ and ‘contested terrain’ are the US-Mexican border on the American and the EU-borders on the European continent.9 These borders are under heavy surveillance using elements of fortification and paramilitary patrolling, in order to discourage illegal immigration. Therefore, these ‘hard borders’ are very difficult to cross without permission or risking one’s health or freedom. – Between most national states we still find ‘traditional borders’, where traffic is checked in an accustomed way, leaving opportunities to cross lines by circumventing intensive controls by authorities. This long established type could be called a ‘semi-permeable border’. – A new type of border on the level of sovereign nation-states has been created in Europe with the Schengen Accord.10 The member states of ‘Schengen’ agreed principally to abandon traditional controls by border police and customs at their countries’ border checkpoints. This allows citizens of Looking into the causes of wars between countries and even of civil wars, it would turn out, that the majority of all armed conflicts originate in disputes about the rearrangement or the legitimacy of borders. 9  For America see T. Dunn, ‘Military Collaboration with the Border Patrol in the US-Mexiko Border Region’, 27 Journal of Political and Military Sociology (1999) pp. 257–277; for Europe (among plenty of references) H. Dietrich, ‘Feindbild “Illegale” – Eine Skizze zu Sozialtechnik und Grenzregime’, 7 Mittelweg 36 (1998) pp. 4–25. 10  Compare in this respect M. den Boer, ‘Schengen: A New Security Regime for Europe’, in K. Hailbronner, ed., Zusammenarbeit der Polizei- und Justizverwaltungen in Europa (Heidelberg 1996) pp. 95–110; R. Genson, ‘The Schengen Agreements – Police Cooperation and Security Aspects’, in P.J. Cullen and W.C. Gilmore, eds., Crime sans frontières (Edinburgh 1998) pp. 133–140 and H.C. Taschner, Schengen – Die Übereinkommen zum Abbau der Personalkontrollen an den Binnengrenzen von EU-Staaten (Baden-Baden 1997). 8 

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detlef nogala Schengen participants to move freely to another Schengen State without the obligation of identity checks or customs inspections. While there is a ‘hard border’ on the outer environment of the Schengen Territory, the territorial ‘interface’ between Schengen states is a special kind of border. On the one hand, there is still an administrative line between sovereign states, organising different political, legal, financial or social regulations. On the other: with the abolishment of formal border controls, there is the direct experience of being free to come and go. Because this kind of border carries two contradictory features – still being a ‘real’ border between systems, but lacking the ‘touch-and-feel’ of a traditional border for the travellers – it can be called a ‘dimorphous border’.

The border between Germany and France, both Schengen participants, is exactly such a kind of border: There is a line marking essential differences in governance – but crossing it, there is almost no restriction. There is another important point when discussing about ‘national borders’: Usually, the border is constructed as a line between two distinct territories. In the case of the French-German border, the river Rhine marks a good part of this line. But there is another, ‘modernised’ perspective of saying what and where the border is. Here the border is not so much considered as a definite line but is rather seen as a ‘zone’, where the other system does not end suddenly, but both sides penetrate each other to a certain extent. This perception is reflected in the day-to-day experience of the border region population, when there is regular traffic from one side to the other for occupational, shopping or family reasons. There are many arguments for the French-German border region as being such a transitional zone: During history, the national domination of parts of the territory has changed from one side to the other, sometimes more than once (Alsace, Lorraine, Saarland, South-West Germany under French administration after WWII). Today, the French-German border region consists of several subnational administrative entities. On the German side there are the Länder Baden-Württemberg, Rhineland-Palatinate and Saarland, on the French side the Departements Haut-Rhin, Bas-Rhin (including Strasbourg) and Moselle. There are significant economic and social links between the French and the German side of the border. Approximately 100,000 people cross the Rhine river on a daily basis, including a growing segment of Germans, who settle on the French side because the prices for land and houses are more affordable. Furthermore, there is traffic caused by commercial, cultural or touristic reasons. To sum up: although we are speaking of two countries with two very distinct political (centralism vs. federalism) and cultural traditions, there are good reasons to look at that territorial interface as a region, rather than a border line.



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Table 1. Population

Density of Pop. per km2

Baden-Württemberg

4,721,472

223–382

Rhineland-Palatinate

1,379,032

180–358

Saarland

1,072,013

417

Bas-Rhin

1,023,638

200

Haut-Rhin

706,225

215

Moselle

1,011,302

163

3. Policing Borderland When some European governments thought and negotiated about abolishing border controls for the sake of enhancing economic dynamics in the EU in the 80s, there was a prompt and fierce outcry from the law enforcement community, that such a move would mean an upsurge of crime and a severe loss of internal security.11 All kind of criminals would take advantage of the free movement into foreign jurisdictions, while police and justice would have to revert helplessly to the old lines of national sovereignty. Under a functional perspective borders were seen as a natural opportunity to exercise executive control on the movements of citizens, aliens and goods.12 For customs and police experts border controls worked like huge inclusive/exclusive filter-systems of social control. If, with 11  In Germany there was a fierce public debate about the ‘bads and goods’ of abolishing border controls, especially under concerns of immigration pressures. See for example R. Rupprecht, ‘Wettlauf der Schnecken. Probleme und Konsequenzen des Abbaus von Grenzkontrollen’, 43 Kriminalistik (1989) pp. 263–270. Also G. Krause, ‘Die Bedeutung polizeilicher Grenzkontrollen in der internationalen Verbrechensbekämpfung’, in Polizei- Führungsakademie, ed., Internationale Zusammenarbeit in der Kriminalitätskontrolle (Münster 1992) pp. 251–268, and M. Hellenthal, ‘Grenzkontrollen als Teil eines nationalen und europäischen Systems zur Kriminalitäts- und Wanderungskontrolle’, 86 Die Polizei (1995) pp. 1–12. Officials have not stopped to promote further border controls, see B. Walter, ‘Überwachung der Außengrenzen – können grenzpolizeiliche Maßnahmen grenzüberschreitende Kriminalität eindämmen?’, in M. Huppertz and V. Theobald, eds., Kriminalitätsimport (Berlin 1998) pp. 151–176, and B. Walter, ‘Erweiterte Befugnisse der Polizei zur Bekämpfung der illegalen Einreise und der grenzüberschreitenden Kriminalität: Eine unabdingbare Notwendigkeit nach dem Wegfall der allgemeinen Grenzkontrollen in Westeuropa’, 90 Die Polizei (1999) pp. 33–40. For an critical criminological examination of border control efficiency see H.H. Kühne, Kriminalitätsbekämpfung durch innereuropäische Grenzkontrollen? Auswirkungen der Schengener Abkommen auf die innere Sicherheit (Berlin 1991), compare also for an policy-science perspective H. Busch, ‘Europa – ein “Mekka der Kriminalität”? EG- Grenzöffnung und internationale Polizeikooperation’, 23 Kritische Justiz (1990) pp. 1–13, and H. Aden, op. cit. 12  See J. Alderson, ‘1992 – Are Border Controls Neccessary?’, 5 Police Journal (1989) pp. 234–237.

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the enactment of the Schengen Accord, the traditional control arrangements at internal borders would be abolished, there would have to be compensating measures such as functional equivalents in order to avert anarchy and lawlessness.13 With the Schengen Implementing Convention of June 1990, a number of provisions were agreed upon (computerised data exchange system (Schengen Information System), visa regime harmonisation, regulation of cross-border hot pursuits), all in order to facilitate cross-border policing and law enforcement. In 1995, the border stations between Schengen states were closed – since then internal Schengen borders have become more or less ‘virtual’.14 Shortly after, another compensating measure was introduced by a few German Länder police forces and other Schengen partner states: hinterland search operations (‘Schleierfahndung’): a 30 km deep stripe along the border line was defined as a space where police and customs would be authorised to stop and ask anyone or any vehicle without the requirement of grounded suspicion.15 Critics have argued, that this measure would undermine the very idea of free movement in the Schengen zone by just substituting the old stationary border control through a moving and flexible one.16 By and large, one could argue, that the Accord of Schengen with all its subsequent compensatory measures have created a new and peculiar border regime within Europe: the traditional controlled and ‘fortified’ border line between national states has been transformed into a semi-permeable, flexible security zone, requiring new philosophies and techniques of policing.17 As said in the section above, the French-German border is a boundary, embedded in and governed by the Schengen provisions: free movement for citizens, mutual legal assistance, regulation of hot pursuits, information system and 13  The demand for compensatory measures in Germany was expressed i.e. by M. Schreiber, ‘Abschaffung der Grenzkontrollen in Europa? Tendenzen, mögliche Auswirkungen und Auffangmaßnahmen’, 39 Kriminalistik (1985) pp. 93–97, and J. Wolters, ‘“Ausgleichsmaßnahmen” nach dem Schengener Durchführungsübereinkommen’, 49 Kriminalistik (1995) p. 172. 14  With the notable exception of the French-Belgian border, because French authorities wanted to keep control on drug-traffic assumed coming from the Netherlands. For the notion of virtuality of Schengen borders see I. Taylor, ‘Virtual Frontiers’ – Resolutions to the problem of European Union Border Control (unpublished paper 1997). 15  Compare D. Moser v. Filseck, ‘Baden-Württemberg novellierte das Polizeigesetz. Verdachtsund ereignisunabhängige Personenkontrollen zur Bekämpfung der grenzüberschreitenden Kriminalität’, 88 Die Polizei (1997) pp. 70–74; K.H. Spörl, ‘Zur Einführung einer verdachts- und ereignisunabhängigen Personenkontrolle (“Schleierfahndung”) in Bayern’, 88 Die Polizei (1997) pp. 217–219, and B. Walter, ‘Erweiterte Befugnisse der Polizei zur Bekämpfung der illegalen Einreise und der grenzüberschreitenden Kriminalität: Eine unabdingbare Notwendigkeit nach dem Wegfall der allgemeinen Grenzkontrollen in Westeuropa’, 90 Die Polizei (1999) pp. 33–40. 16  See M. Herrnkind, ‘Personenkontrollen und Schleierfahndung’, 33 Kritische Justiz (2000), pp. 188–208, and T. Feltes, ‘Verdachtslose Rasterfahndung und verdachtslose polizeiliche Ermittlungsmaßnahmen – wirksame Sondermaßnahmen gegen internationale Kriminalität?’, in M. Huppertz and V. Theobald, op. cit., pp. 59–92. 17  See M. den Boer, loc. cit.



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‘hinterland checkpoints’ (when deemed necessary, on both sides). Nevertheless, the real picture of French-German cross-border policing would be very much incomplete without mentioning two other facets: the long-established informal cross-border networks of officials from customs and diverse police forces18 and – as a more recent development – the ‘regionalisation’ of (bilateral) border security regimes, propagating a comprehensive cooperative security approach.19 – Networks of security ‘ground crews’ at borders arose out of pragmatic requirements to deal with certain events or cases in times when precise legal regulations were absent. Usually based on personal acquaintance and personal trust – a key factor in police cooperation –, these contacts are used to exchange information in order to proceed with one’s own investigation or case. Although they are praised for their efficiency by ‘groundtroops’ and politicians alike,20 their main disadvantages are, that their functioning depends very much on single persons, whereby knowledge and experiences could be easily ‘shielded’ against scrutiny by superiors or other outside reviewers. That makes them difficult to govern and to utilise in comprehensive strategies, despite their local indispensable usefulness. – From some German executives point of view, the Schengen regulations seem to be considered as a necessary but insufficient remedy for facilitating cross-border cooperation. Dissatisfaction with legal obstacles and hindrances as well with time-consuming procedures via central headquarters seems to prevail at this level.21 In response, a regional approach to cross-border 18  See G. Lehnert, ‘Gute Kontakte nach Frankreich – Internationale Kooperation der Polizeibehörden an der Saar’, 41 Kriminalistik (1987) pp. 486– 487 and K. Bux, ‘Die offene und die grüne Grenze. Verbrechensbekämpfung in Baden-Württemberg mit Frankreich und der Schweiz’, 41 Kriminalistik (1987) pp. 489–490 for a reference to cross-border policing two decades ago. 19  The philosophy is explained in D. Schneider, ‘Ein grenzüberschreitendes kooperatives Sicherheitssystem. Oder: Auf der Suche nach einer neuen Qualität der Zusammenarbeit’, 52 Kriminalistik (1998) pp. 306–312; M. Hellenthal, ‘Eine neue Strategie: Das grenzüberschreitende Sicherheitskooperationssystem’, Nr. 1 Schriftenreihe der PFA (1997) pp. 43–76, and Innenministerium Baden-Württemberg, ed., Grenzübergreifendes Kooperatives Sicherheitssystem. Internationale Fachkonferenz des Innenministeriums Baden-Württemberg, am 19. November in Lörrach (Stuttgart 1997). 20  Officials of Baden-Württemberg might serve here as an example, see Th. Schäuble, ‘Grenzüberschreitende polizeiliche Zusammenarbeit aus der Sicht Baden-Württembergs’, 89 Die Polizei (1998) pp. 309–314 and E. Hetger, ‘Zusammenfassung’, in Innenministerium Baden-Württemberg, ed., loc. cit., pp. 70–72. 21  While civil libertarians and lobby groups for asylum seeker criticise the Schengen provisions, some police representatives dismiss them as ‘not good enough’ and in need of review in respect to usefullness and practicability. Compare F. Huber, ‘EUROPA und seine fortbestehenden Grenzen. Oder: Die unbehinderte grenzüberschreitende Kriminalität und die Hemmnisse in der Zusammenarbeit mit Frankreich’, 51 Kriminalistik (1997) pp. 396–399; P. Ingenerf, ‘Das Schengener Abkommen. Eine kritische Betrachtung aus der Sicht einer Polizeibehörde im Grenzraum’, 43 Kriminalistik (1989) pp. 341–362, D. Schneider, loc. cit., and H. Höger, ‘Grenzüberschreitende Zusammenarbeit nach den Bestimmungen des SD‹ – Anspruch und Wirklichkeit aus der Perspektive der Landespolizei’, in A. Nachbaur, ed., Die grenzüberschreitende Zusammenarbeit von

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detlef nogala police cooperation has been put on the political agenda, and finally some competence to arrange for cooperation in border regions when transferred from the federal centre (Bundeskriminalamt) to the Länder (Landeskriminalamt).22 Parallel to these shifts of competencies, there seems to be the development of a new notion of border regime: under this perspective the perception of border as a line has already been abandoned in favour of the concept of a border zone, which, under a criminological and criminal policy point of view, extends to both sides of the boundary.

In turn, this new doctrine creates further and different requirements for legal framing and institutions of strategic and operative cooperation. Even before the Schengen Treaties, the French and German government negotiated bilateral agreements to facilitate practical cooperation in cross-border security affairs. The latest step in this formalising process is the Mohndorf Agreement of October 9, 1997.23 Besides a detailed regulation of concrete cooperation procedures, it provides for the establishment of a joint centre for the cooperation of customs and police forces operating in the border region.

4. An Experimental Institutional Arrangement: The French-German PCCC Article 4 of the Mohndorf Treaty provides, that a joint site of cooperation should be established, where members of police forces and customs of both countries should work together under one roof and in direct exchange of information and knowledge. The principal tasks of this institution are a) to serve as a base for the exchange and distribution of data between participating authorities (regardless of duties to inform national headquarters) and b) to coordinate operations, in cases where the competencies of more than one authority might be affected (surveillance operations, hot pursuits, search operations). Section 1 of Article 7 explicitly states that all officers should strive for trustful collaboration, mutual assistance and working together as a team. Polizei und Justiz in den Schengen-Staaten (Villingen-Schwennigen 1998) pp. 45–51. An interesting counterpoint with view on ‘high-politics’ is set by H. Nicolaus, ‘Schengen und Europol – ein europäisches Laboratorium? Europäische Polizeikooperation in deutsch-französischer Sicht’, 15 NVwZ (1996) pp. 40–43. 22  The structural dispute between the federal and the Länder-level about the best way to institutionalise cross-border policing is reflected in U. Kersten, ‘Die Rolle des Bundeskriminalamtes als Zentralstelle bei der internationalen Zusammenarbeit’, 88 Die Polizei (1997) pp. 337–364; U. Kersten, ‘Chancen und Risiken neuer Zuständigkeiten. Gemeinsame Strategien zur Verbrechensbekämpfung’, 53 Kriminalistik (1999) pp. 40–44, and E. Hetger, ‘Polizeiliche und justizielle Zusammenarbeit der Bundesländer mit den Nachbarstaaten – sinnvolle Koordinierungsmaßnahme oder Mißachtung der Bundeskompetenzen?’, in M. Huppertz and V. Theobald, op. cit., pp. 197–209. 23  Documented in Innenministerium Baden-Württemberg, op. cit., pp. 76–84.



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Criminologists and police researcher are aware, that this is not an easy condition to comply with, if one brings together not only members of different security forces, but even competing organisations, and from diverse organisational and national cultures. The establishment of the joint Police and Customs Cooperation Centre (PCCC) is a logical consequence derived from the vision of the above mentioned ‘cross-border cooperative security system’: if the border region is perceived as a shared geocriminological space, all forces engaged in law enforcement and the fight against crime have to be informationally linked and coordinated, in order to achieve the best result for internal security of the region.24 Similar to Europol, it is seen as a potential nucleus for a new joint policing power in the region, responding to the special security needs of the borderland area. The centre is organised as a 24-hour information board facility, with a normal shift for high-ranking officers. The French side is represented by officers from the Police Nationale (23), Gendamerie (6) and Douane (5); involved German authorities on a permanent basis include officers from the police of BadenWürttemberg (14) and Rhineland-Palatine (2), Zoll (2) and Bundesgrenzschutz (BGS) as federal police (7). Each side has appointed a national co-ordinator. It took up its official business in March 1999. Since then, the PCCC has to be considered as an innovative institutionalisation of cross-border policing efforts; by composition of its participating organisations, it could be taken, in a way, as a unique institutional policing experiment: although there are now plenty of examples of joint cross-border cooperations, task-forces and information units and also collaborations within a countries’ jurisdiction, nowhere else can one find such a mixture of institutions of formal social control under one roof, required to pool resources and to team up. Although they officially share a concern for border control and border region security, their principal organisational tasks, their internal organisation principles, their resources and organisational as well as occupational cultures are supposed to be quite diverse. Of the seven directly engaged head organisations are: – five under the auspices of a central, two of a regional government, – four responsible to a Ministry of Interior, two to a Ministry of Finance and one to a Ministry of Defence, – two based on military organisational models (command structures and uniforms), – and five have had authority for border control before. Of course, all these organisations come with their own peculiar competencies and resources, and it can be assumed, that this will enhance the performance of 24 

D. Schneider, loc. cit.; Hetger loc. cit.

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the centre in its function as a board of information exchange and distribution. It might be much more difficult to focus the different organisational agendas – in their official and their hidden versions – on the strategic level, when it comes to finding agreements for priority-setting. After only a two-year period of operation, judgements on the prospects of the success of this innovative institutional setting for a border regime are difficult to make. According to the latest Year-Report of the PCCC,25 the main function of the centre seems to be to answer requests for information by diverse police units and organisations from both sides of the ‘virtual’ border, and to serve as a mediator institution between the different affected organisations and their cultural premises. However, because of its organisational disparities, distinctions and variations of performing formal social control, the centre is also a unique object for criminological and organisational studies. As a joint endeavour of usually separated policing powers and its focus on cooperation, the PCCC is expected to mirror the structural and general problems of (formalised official) cooperation within the field of policing. Although our research is still work-in-progress, we could tentatively sum up from our field observations the following ‘problem-zones’ of cross-border, multi-agency security work, due to organisationally provoked interference: – The key-currency of cooperation is personal trust. While it might be possible to build up mutual trust with the colleagues of the centre, this process might interfere with traditional organisational rivalries and jealousy.26 – While it seems to cause no problems to the exchange of data on a daily routine basis, it is, because of the assorted organisational agendas much more difficult to find common ground on the strategic level. This presumes successful ways of defining shared goals and agreed procedures to get there. – All involved participants have to undergo a process of successive adaptation in terms of procedural preferences, work style, managerial habits and general occupational culture. This might be easier for participants, who are socialised into discursive ways of dealing with problems or who enjoy some discretion in doing their work. 25  Gemeinsames Zentrum der deutsch-französischen Polizei- und Zollzusammenarbeit, ed., Jahresbericht 2000 CD-ROM (Offenburg 2001). 26  For institutional competition from a structural point of view see D. Bigo, ‘The European International Security Field: Stakes and Rivalries in a Newly Developing Area of Police Intervention’, in M. Anderson and M. den Boer, eds., Policing across National Boundaries (London 1994) pp. 161–173; for an emphasis on a cultural approach see J.W.E. Sheptycki, ‘The Global Cops Cometh: Reflections on Transnationalization, Knowledge Work and Policing Subculture’, 49 British Journal of Sociology (1998) pp. 57–74. The French situation is described by R. Lévy, ‘Neighbourhood versus Europe: The Dilemma of French Policing’, in R. Hood and N.E. Courakis, eds., The Changing Face of Crime and Criminal Policy in Europe (Oxford 1999) pp. 67–88.



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– The involved organisations come with different resources, competencies, jurisdictions and political standings. Thus, there is a risk of bias in internal negotiations about shared agendas and priorities. – A multiplicity of social protagonists opens opportunities for all kinds of coalitions, fragmentations, camp-building or power-games. This dynamic could be initiated from within the interaction of the persons at the local scene or be fed from outside by institutional ‘scripts’. The outcome is crucial for building a sustainable system of accounting success and failure of the work of the PCCC. Other obstacles of thriving cooperation efforts, mentioned in the research literature,27 but also found in the field, can be traced back to structural legal and political factors: – Although it is rarely an issue of operational work, the basic structural factor in determining structural differences seems to be the favoured central political philosophy of the organisation’s sending state: France as a centralised governance system on the one side, Germany as a federal system with ‘mixed’ competencies on the other. This issue seems to determine the relative ‘autonomy of action’ and corresponding ‘flexibility’ of each security authority. – Another major distinction, to some extent deriving from the first mentioned, is caused by the different legal culture – both on the procedural and the institutional level. For example, in France there is no special Police Law and the ‘institutional standing’ of the judiciary in dealing with cross-border cases is significantly more succinct. – Clearly, the need for and the emphasis on building a new ‘cross-border cooperative security system’ is not equally developed on both sides of the Rhine. While the Germans seem to promote the notion of the border as a zone, the French stick more to a belief in sovereignty and still consider the border more a line, separating two different entities. Thus, the political ‘investment’ into institutionalising cross-border policing seems to be dissimilar between the countries. At this point, the preliminary analysis of our – so far – empirical findings has to cease. From here, there are ramifications to further examination of the innovative control regime across a dimorphous border. One direction would be to analyse in more detail, what exactly triggers cooperation of policing agencies 27  See L. v. Outrive, ‘Politiesamenwerking in de Europese unie: een politie zonder staat?’, 23 Recht en kritiek (1997) pp. 315–329; D. Bigo, loc. cit., and M. den Boer, ‘Internationalization: a Challenge to Police Organizations in Europe’, in R.I. Mawby, ed., Policing across the World (London 1999) pp. 59–74.

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and how precisely collaboration is achieved. Another strand would be to examine the actual position of the PCCC in a multi-level system of cross-border crime control and law enforcement. Is it really a prototype of a new network of regional-comprehensive cooperation? Finally, one could question the actual criminological effects on certain crimes and general structures of deviance. In any case, the empirical study of the PCCC is a worthwhile endeavour – it is currently a unique social laboratory on the prospects of enhanced police cooperation across European borders.

5. Conclusion There is plenty of evidence, that in the course of globalisation and growing mobility of capital, goods and populations, and against the background of fear of transnational organised crime and uncontrolled immigration, ‘transnational’ or ‘cross-border policing’ is a rising issue on the criminological agenda.28 The matter of border control and new proposals for the governance of bi- or multinational border regions, do not only touch on questions of effective organising formal social control for a defined territory, they also lead to problems of sovereignty in the age of the alleged decline of the nation state29 and to general enquiries into just and democratic variations of governance in a still conflict-ridden and fast changing world-society. It would be a lesson in itself to compare the different kinds of borders and border regimes and how they are supposed to produce order and security. ‘Hot’ borders like the boundary between the US and Mexico or the geographical interfaces between the European Union and its poor Eastern and Southern neighbours are telling exemplifications. One thesis derived from our research would be, that configurations of crossborder policing (as well as the political-academic discourse about it), have to be interpreted against the distinct historical-political background of the territory and its socio-geographical environment. Another interesting observation is, that the establishment of the PCCC might be seen as a strong indicator for and a show-case model of the emergence of a new third institutional plateau of cross-border security cooperation, which is situated between the effective but unstable informal local networks near the border and the distanced headquarters, concerned with the overall-picture and

H. Aden, op. cit. For a global analysis see S. Sassen, Losing Control? Sovereignity in an Age of Globalization (New York 1996) and S. Sassen, ‘Territory and Territoriality in the Global Economy’, 15 International Sociology (2000) pp. 372–393. 28  29 



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issues of high-policing.30 Of course, this development would have institutional as well as political implications and ramifications. It would also call attention to the issue, that there is more to study than ‘Schengen’ and ‘Europol’. For the study of police and policing, cross-border security arrangements could be an essential part of a powerful emerging ‘leitmotif ’, a new managerial slogan of how to organise and achieve police work: cooperation. Cooperation has become a buzzword throughout the policing field: with shrinking public budgets, it is demanded of police officials to increase the efficiency of their organisation by entering into cooperative arrangements with other security entities, including collaborations with secret services or commercial security firms – as long as it is for the benefit of law enforcement and the popular need to feel more secure. The new enhanced position of customs agencies within the field of internal security has to be seen as part of this development.31 But there is enough reason to be sceptical about the suggestive connotations of ‘cooperation’ and its results, especially in the power-loaded field of (formal) social control and governance. It can not be wrong in a democratic society to ask insistent questions about the need, the legitimacy and the limits of police cooperation – across borders or elsewhere.

30  Brodeur introduced the concept of ‘high-policing’ for describing police actions, that are directed to interactions on the political stage (see J.-P. Brodeur, ‘High Policing and Low Policing: Remarks about the Policing of Political Activities’, 30 Social Problems (1983) pp. 507–520). 31  For Germany see H. Busch, ‘Zollfahndung und Zollkriminalamt. Die unbekannten und unterschätzten Polizeien’, Nr. 62 Bürgerrechte und Polizei (CILIP) (1999) pp. 27–30, for the UK A. Doig and M. Graham, ‘Dancing to Whose Tune? Change and Investigations in HM Customs and Excise’, 76 Public Administration (1998) pp. 489–498; for France F. Jacob, loc. cit.

On Joint Investigation Teams, Europol and Supervision of Their Joint Actions1 Tom Schalken and Maarten Pronk 2 Professor of Criminal Law and the Law of Criminal Procedure, Free University Amsterdam, the Netherlands Assistant Research Fellow, Free University Amsterdam, the Netherlands

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 organised. 1  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. 2  Tom Schalken and Maarten Pronk are affiliated to the Research School Public Security.

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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 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 Decree of the Council d.d. 28 April 1997, Pb. 1997, C 251/01. 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. 3  4 



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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 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 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).

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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 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

Decree of the Council d.d. 28 April 1997, Pb. 1997, C 251/01. 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.F. 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. 8  9 



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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.

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 14  15  16 

Pb. 2000, C 298/8. Pb. 2000, C 357. Pb. 2000, C 358.

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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 over-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 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.F. Fijnaut, E.R. Muller en U. Rosenthasl, eds., Police. Studies over haar werking en organisatie (Alphen aan den Rijn 1999) pp. 577–617. 21  J. Koers, Nederland als verzoekende staat bij de wederzijdse rechtshulp in strafzaken. Achtergronden, grenzen en mogelijkheden (Nijmegen 2001) p. 226. 17 



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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 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

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). 26  J. Koers, op. cit., p. 373.

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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 P.J.P. Tak, ed., Heimelijke opsporing in de Europees Unie (Antwerpen-Groningen 2000) p. 815. 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.F. Fijnaut, De normering van het informatieve onderzoek in constitutioneel perspectief, preadvies voor de Nederlandse Vereniging voor Rechtsvergelijking (Deventer 1994). 27  28 



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national courts – this does not alter the fact that in the decisions of the Court 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. 31  32  33  34  35 

Kostovski, 1989; Van Mechelen, 1997. Edwards, 1992. Murray, 1996. Saunders, 1996. Rodriguez, 2000.

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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, 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. Cf. C.J.C.F. Fijnaut, ‘Europol en Eurojust’, Justitiële verkenningen (2001)-2, pp. 17–21. 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. 36  37 



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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. 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 Pb. 2000, L 324. 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. 40  41 

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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, 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.



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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 interconnections 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 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

9. Literature M. den Boer, ‘Police Cooperation in TEU: Tiger in a Trojan horse?’, Common Market Law Review, no. 2 (1995) pp. 555–578. M. den Boer, ‘Booming Business in Brussels: JBZ-instrumenten rollen in hoog tempo van de lopende band’, Trema (1999)-2 p. 39.

43  The numerous inter-connections at police level between the first, second and third pillars are exhaustively analysed by Fijnaut (C.J.C.F. 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.F. Fijnaut, loc. cit. 45  B. Swart, loc. cit.

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M. den Boer, ‘Internationale politiesamenwerking’, in C.J.C.F. Fijnaut, E.R. Muller and U. Rosenthal, eds., Politie. Studies over haar werking en organisatie (Alphen aan den Rijn 1999) pp. 577–617. F.J.L.M. Claus en M.G. Faure, Juridische beletselen voor politiële beleidssamenwerking tussen Nederland en België (Maastricht 1995). D.M. Curtin, ‘Criminal Justice, Unidentified International Organisations and Human Rights Protection in Europe’, in C.H. Brants, C. Kelk and M. Moerings, eds., Er is meer. Opstellen over mensenrechten in internationaal en nationaal perspectief (Deventer-Utrecht 1996) pp. 63–76. 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). C.J.C.F. Fijnaut, De normering van het informatieve onderzoek in constitutioneel perspectief, preadvies voor de Nederlandse Vereniging voor Rechtsvergelijking (Deventer 1994). C.J.C.F. Fijnaut, ‘Justitiële samenwerking en de beheersing van georganiseerde misdaad in de Europees Unie’, Delikt en Delinkwent (1998)-10 pp. 988–1033. C.J.C.F. Fijnaut, ‘De strafrechtelijke bescherming van de financiële belangen van de Gemeenschap tegen fraude’, Delikt en Delinkwent (2000)-10 pp. 972–988. C.J.C.F. 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. C.J.C.F. Fijnaut, ‘Europol en Eurojust’, Justitiële verkenningen (2001)-2 pp. 11–24. K. Hailbronner, ‘Die Immunität von Europol-bediensteten’, Juristen-Zeitung, no. 6, (1998) pp. 283–289. 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). A.H. Klip, ‘Europol, Who is Watching You?’, in H. Meijers, et al., Democracy, Migrants and Police in the European Union: The 1996 IGC and Beyond (Utrecht 1997) pp. 61–73. J. Koers, Nederland als verzoekende staat bij de wederzijdse rechtshulp in strafzaken. Achtergronden, grenzen en mogelijkheden (Nijmegen 2001). J. Koers, ‘Het EU-rechtshulpverdrag. Wederzijdse bijstand in strafzaken’, Justitiële verkenningen (2001)-2 pp. 43–55. R. MacMahon, ‘Maastricht’s Third Pillar: Load-Bearing or Purely Decorative’, Legal Issues of European Integration, no. 1 (1995) pp. 51–64. B.E.P. Myjer, Bij een vijftigste verjaardag, inaugural lecture Vrije Universiteit Amsterdam (Nijmegen 2001). Interview met G. Strijards en M. van Erve, ‘Een autonome ontwikkeling, zoals het stijgen van de zeespiegel’, Opportuun (May 2001) pp. 3–5.



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W. Schomburg, ‘Justitielle Zusammenarbeit im Bereich des Strafrechts in Europa; Euro-Just neben Europol!’, Zeitschrift für Rechtspolitik, no. 6 (1999) pp. 237–240. J. Schutte, ‘Police Cooperation’, in B. Swart and A. Klip, eds., International Criminal Law in the Netherlands (Freiburg i.Br. 1997) pp. 145–172. B. Swart, ‘Amsterdam-Brussel-(Luxemburg): De strafrechter en de derde pijler’, Gerechtshof Amsterdam, Prinsengrachtreeks (1999)-2, Ars Aequi (1999) pp. 30–39. B. Swart, ‘Politie en justitie in de Europese Unie’, Ars Aequi (2001)-5, pp. 109–118. P.J.P. Tak, ed., Heimelijke opsporing in de Europese Unie (Antwerpen-Groningen 2000). G. Vermeulen, ‘A European Judicial Network linked to Europol? In Search of a Model for Structuring Trans-National Criminal Investigations in the EU’, Maastricht Journal of European and Comparative Law, no. 4 (1997) pp. 346–372. G. Vermeulen, Wederzijdse rechtshulp in strafzaken in de European Unie: naar een volwaardige eigen rechtshulpruimte voor de Lid-Staten? Kritische analyse en evaluatie van vijf jaar onderhandelingen in het kader van de derde pijler (1 November 1993–31 October 1998) (Antwerpen-Apeldoorn 2000). N. Walker, ‘The Accountability of European Police Institutions’, European Journal on Criminal Policy and Research, no. 4 (1993) pp. 37–52.

Joint Investigation Teams in the European Union: Article 13 JITS and the Alternatives Toine Spapens Department of Criminal Law, Tilburg University, the Netherlands

1. Introduction Joint Investigation Teams (JITs) can represent an important benefit in cross-border criminal investigations. Police officers working in border regions recognised this as early as the 1960s. In 1976, for example, during a meeting of the Cross Channel Intelligence Conference – one of the longest standing forums for police cooperation in European border regions – Commissioner Jan Blaauw said: We have to find ways of allowing operational police officers to get together and exchange intelligence, as recent experience in several murder cases has proved again and again … Letters rogatory aren’t helpful to anyone who wants to get an overall picture of the crime committed.1

Although it had not been completely impossible to mount joint teams before, it was not until 2000 that the European Union created an explicit legal basis for JITs in Article 13 of the European Union (EU) Convention on Mutual Legal Assistance (MLA). As the Member States were slow to ratify the new Convention, the Council adopted a specific Framework Decision on JITs in 2001, to speed up the use of the JIT-instrument.2 It will be effective until all Member States have implemented the Convention in national legislation. Despite these efforts and the presumed practical advantages of JITs, investigative authorities still only use them occasionally. Between 2004 and June 2009, JITs were formed in only about 40 cross-border criminal investigations throughout 1  Cross Channel Intelligence Conference, Bruges, 11/12 May 1976, cited by: D. Gallagher, European Police Cooperation: Its Development and Impact between 1967–1997 in an Anglo/French Trans-Frontier Setting (unpublished PhD thesis, Southampton University, 1998). 2  Besides in the EU, JITs may also be established on the basis of the Second Additional Protocol to the European Convention on mutual assistance in criminal matters (2001), with regard to the Member States of the Council of Europe, and on the basis of the United Nations Convention on Transnational Organized Crime (2000) and the United Nations Convention against Corruption (2003).

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the Union.3 Yet, the Council of the EU remains to be a staunch advocate of the instrument as such. In December 2009, it stated in its 2010–2014 programme for Justice and Home Affairs (the Stockholm programme) that the Council ‘encourages Member States’ competent authorities to use the investigative tool of Joint Investigative Teams as much as possible in appropriate cases’.4 The Council, however, did not elaborate on what it considered ‘appropriate cases’. In a report issued in 2008 in preparation for the Stockholm programme, the High Level Advisory Group (HLAG) on the future of European home affairs policy appeared to think that setting up a JIT would probably not be necessary in straightforward cases. ‘For certain aspects of criminal investigation, it will probably be necessary to work towards a simplification of the regulations applied when an investigation needs to be carried out on the territory of another Member State,’ according to the HLAG. For those cases, the Group recommended allowing police officers to perform non-coercive acts on the territory of another Member State, such as taking witness testimony on a voluntary basis. Experiences in the Netherlands, however, show that even in complex investigations of organised crime, a JIT does not always offer particular advantages over other forms of coordinated cooperation practically developed by the police before a legal basis for a JIT existed. These alternative forms break down into two categories: ‘parallel’ (or mirror) investigations, and joint teams based on framework agreements. These types of cooperation remain current, because they may be as effective as a ‘genuine’ Article 13 JIT. This paper addresses the different types of coordinated and joint investigation, and considers the circumstances under which each of these is a particularly useful instrument. The practical examples discussed here are taken from a number of empirical studies of police and judicial cooperation carried out in the Netherlands.5 Section 2 begins by outlining two main types of serious and organized crossborder crime, and discusses relevant developments of the past two decades. 3  M. Lilova, Joint Investigation Teams/JITs. The Role of Eurojust and Europol in Establishing and Supporting JITs. Paper presented at the 4th Summer School for Junior Magistrates from SEE Countries (Ohrid, 2009). 4  Council of the European Union, The Stockholm Programme – An Open and Secure Europe Serving and Protecting the Citizens, 17024/09, 2 December 2009, Brussels. 5  Cf. M. den Boer and T. Spapens, (eds.) Investigating Organised Crime in European Border Regions (Tilburg, 2002), IVA; T. Spapens, ‘Policing a European Border Region: the Case of the Meuse-Rhine Euroregion’, in: E. Guild and F. Geyer, (eds.), Security Versus Justice? Police and Judicial Cooperation in the European Union (Aldershot, 2008), Ashgate: 225–241; T. Spapens, ‘Police Cooperation in the Dutch Border Areas,’ in: C. Fijnaut and J. Ouwerkerk (eds.), The Future of Police and Judicial Cooperation in the European Union (Leiden/Boston, 2009), Martinus Nijhoff Publishers: 73–102; C. Fijnaut and T. Spapens, ‘The Meuse-Rhine Euroregion. A Laboratory for Police and Judicial Cooperation in the European Union’, in V. Lemieux, (ed.), Emerging Initiatives and Contemporary Obstacles in Police Cooperation (Cullompton, 2010), Willan Publishing.



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Section 3 offers an overview of the legal framework for law enforcement cooperation in the EU, and the development of the JIT as an instrument. Section 4 offers three examples of practical experiences with JITs based on Article 13 of the EU MLA Convention. Sections 5 and 6 discuss examples of alternatives to establishing Article 13 JITs: parallel investigations, and joint investigations based on framework agreements. Section 7 presents the conclusions.

2. Outlining Serious and Organized Cross-border Crime Serious and organized cross-border crime is certainly not a new phenomenon. Where and whenever borders between jurisdictions have been created, criminals have used them to their advantage. Section 2.1 discusses two main types of crime: predatory crime and the illegal provision of goods and services. Other types, such as murder and abduction, will not be considered here, although, as Commissioner Blaauw rightly observed, it may of course be useful to mount coordinated or joint teams to investigate those cases as well. Section 2.2 discusses the changes in serious and organized cross-border crime brought about by economical, social and political developments, such as increasing mobility, migration and freedom of travel, particularly in the last two decades. 2.1. The Two Main Types of Cross-border Crime As long as there have been borders between jurisdictions, criminals have put these to good use to avoid apprehension and conviction. Particularly in border regions, gangs residing in one country commit predatory crimes on the other side of the border. As early as in the seventeenth century, for example, the south of the Netherlands was home to such groups as the White Feather Gang in North Brabant, which committed crimes tens or even hundreds of kilometres away from their operating bases, usually camps in remote and densely forested areas. These gangs raided farms and extorted money from farmers by threatening to destroy their stock or farmhouses unless a ransom was paid. The Netherlands – and at the time the plural form reflected the political reality – did not have a unified criminal code, and the number of its independent jurisdictions ran to approximately 200. Not surprisingly, robber gangs often chose to take up residence close to the borders of two or more of these jurisdictions, making sure to commit no crimes in any one of these. Authorities of the places where the gangs were active of course put pressure on their fellow magistrates to take repressive action. These, however, were often reluctant to do so, because that required substantial manpower and thus high costs. Nor were such actions without risk, because the gangs sometimes numbered up to 300 persons, including women and children, and were heavily armed. If, however, the police or the army did appear in force, the gangs proved to be far from invulnerable. The activities of

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the White Feather gang, for example, abruptly ceased in March 1724, when a raid on their camp resulted in the arrest of 66 men, including their leader ‘Swarten Johannes’ (Black John).6 Nowadays, escaping prosecution by crossing the border is far less easy. The risk of being subjected to a concerted criminal investigation, however, may still be lower for a group that commits its crimes across national borders. Policymakers are naturally inclined to deal with crimes for which their citizens and voters hold them accountable. Logically, to them a crime group that mainly causes trouble elsewhere is a lower priority. Although it may thus still be advantageous to make use of national borders, most present-day gangs seem to be primarily driven by the availability of suitable targets in other countries and often also commit crimes in their countries of residence.7 For example, Dutch crime groups now ‘specialize’ in the theft of commercial vehicles and loads, the theft of private cars and motorcycles, and burglary of commercial premises, including ram-raids. These crimes are committed primarily in the Dutch-Belgian border areas. In Germany, Dutch crime groups mainly rob banks, jewellery stores, and the like. Belgian groups specialize in bank robberies and hold-ups of money transports in the Dutch as well as in the German parts of the border area. German criminals, however, seem to be less active in systematically committing predatory crimes in the Netherlands and Belgium.8 The illegal provision of goods and services is the second main type of serious and organized transnational crime. Trafficking may originate from differences in legislation, but it may also be economically driven. An example of the first category is the illicit trade in amphetamine in the 1960s and 1970s, when Sweden, for instance, had already banned the product but the Netherlands did not follow until 1975. Economic differences may, for example, result in the trafficking of human beings who seek a better future in Western Europe or North America. The smuggling of people or illegal substances, such as narcotic drugs, often spans a large part of Europe or even the globe. Yet, these types of cross-border crime are usually ‘glocal’ in nature and involve independent criminal groups based in different countries, tied only by business relations. In one case, a Dutch criminal tried to buy a large quantity of cocaine in Columbia, which he intended to pay for with a shipment of ecstasy. Contacts between the supplying and buying 6  An interesting footnote in history is that these types of gangs quickly disappeared after the French had occupied the Netherlands in 1795. The French unified the criminal code and thus put an end to the independent local jurisdictions. Moreover, they formed mobile Gendarmerie units, specifically tasked with combating the countryside gangs. 7  T. Spapens, Georganiseerde misdaad en strafrechtelijke samenwerking in de Nederlandse grensgebieden (Antwerp/Oxford, 2008) Intersentia. 8  Spapens, 2009, op. cit.



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criminal groups, however, were limited to just a few visits to Colombia to work out the financial and practical details.9 The Dutch police never enquired with the Colombian authorities for more information, probably because of the presumed risk that such a request would leak out and thus compromise the investigation. Another example is a case of human trafficking from China to the United Kingdom at the turn of the century. Immigrants covered the first stage of their journey by airplane from China to Prague. From the Czech Republic, which at that time was not yet an EU Member State, they were then smuggled into the EU. The immigrants then slowly completed their phased journey to the United Kingdom. They often had to wait for several weeks or even months before being able to complete another stage of the journey. During this time, they stayed in safe houses provided by the ‘travel agents.’ A Dutch investigation team worked on the case for several years practically without needing to cooperate with law enforcement agencies in other countries. Instead, the investigation targeted an indigenous group led by a Chinese immigrant that was responsible for the final stage of the smuggling operation: the journey from the Netherlands to the United Kingdom. It did become necessary to set up a joint parallel investigation, however, when one of the transports went horribly wrong and 58 illegal immigrants from China died in the container in which they had been smuggled from Rotterdam to Dover.10 2.2. Developments in Cross-border Crime In recent decades, opportunities for criminals to operate across the border have increased substantially. This section discusses three important explanations for this. The first crucial factor is growing mobility, combined with increasing freedom to travel abroad. In Europe, for example, the fall of the Iron Curtain in 1989 opened up new criminal markets. To begin with, itinerant crime groups from Eastern Europe started to commit predatory crimes in the Western part of the continent. Lithuanian groups have specialized in vehicle theft, as well as in theft of valuable vehicle parts from parked vehicles, such as airbags. Polish crime groups are mainly associated with hold-ups and organized shoplifting. South Eastern European itinerant groups, mostly from Rumania, Albania and the former Yugoslavia, usually combine all sorts of predatory crime such as burglary, vehicle theft, and shoplifting.11

T. Spapens, Interactie tussen criminaliteit en opsporing (Antwerp/Oxford, 2006), Intersentia. For a description of this case see: E. Johnson, ‘Case Report Operation Mallard from the Cross-Channel Euroregion’ in: Den Boer and Spapens (eds.), 2002, op. cit. 11  Spapens, 2008, op. cit. 9 

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With regard to the illegal provision of services, criminal groups started to exploit Eastern European women as prostitutes in Western European cities. In the Amsterdam Red Light District, for example, many prostitutes now come from Hungary and Romania and substantial differences in economic prosperity between those countries and Western Europe leave them highly vulnerable to exploitation. Because of these differences, it will be less difficult for a pimp to force a Romanian prostitute to surrender 90% of her earnings to him, because this will still leave her with five times the amount of money she would be able to make in a regular job at home. Not surprisingly, many of these women are inclined to accept the situation and do not even consider themselves victims of human trafficking. The effects of growing mobility on transnational crime, however, are not confined to the European continent, but have taken on a truly global scope. Already in the 1990s, for example, prostitutes from South-America worked in Amsterdam for a few consecutive months and then returned home, to come back the next year. The money they made enabled them to support their families between ‘stints’. An exceptional example of the globalization of predatory crime surfaced a few years ago, when the Dutch police apprehended a group of Brazilians who had specifically come to the Netherlands to commit burglaries and to send the proceeds of their crimes back home. Another notable factor in the internationalization of organized crime is the diversification of migration flows. Diasporas have always played an important role in international trade because of the business relations between the members of enclaves residing in different parts of the world. Such business relations not only enable them to engage in legal trade, but also to traffic illegal goods. In the 1990s, for example, the so-called ‘Kosher network’ played a pivotal role in the XTC trade from the Netherlands to the United States. Israeli immigrants living in the Netherlands managed to establish contacts with both Dutch XTC producers and wholesale buyers in the US, often by using relatives as intermediaries.12 ‘Diaspora networks’ are now no longer limited to traditional emigrant communities, such as the Chinese and the Armenians. Nowadays, the major cities of the world are home to communities from virtually any country in the world. In 2007, for example, people of 177 different nationalities were living in the city of Amsterdam. The far greater ease with which immigrants can now retain social contacts with relatives at home implies the existence of a highly diversified network of international social relations. Such relations are also an essential prerequisite for setting up cross-border trade, particularly if such trade involves the trafficking of illegal goods.

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Spapens, 2006, op. cit.



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Finally, the Internet has proven to be a great boon to cross-border crime. It has allowed for, enabled and indeed facilitated the modernization and internationalization of existing illegal activities. Illegal gambling and match fixing are examples of crimes the Internet has globalized. In 2005, for instance, a match fixing scandal surfaced in Belgium, in which Zhehun Ye, a Chinese national, allegedly paid football players in a lower division of the Belgian competition to ‘ensure’ specific results. The actual gambling activity took place in Asia.13 Nowadays, websites in Asia offer betting on virtually any football match played in Europe. Patrons wager an estimated average of €50 million per match in even the lowest amateur divisions in the Dutch football competition. Another example is the skimming of debit or credit cards. One group may obtain the information, and sell it to other groups, which use it to manufacture falsified cards and then clean out the accounts of the original cardholders. Recently, for example, the Belgian police arrested a group of Chinese who bought large amounts of luxury goods in different European cities with falsified credit cards. They had bought the necessary information to manufacture the cards from a Ukrainian criminal group, which had hacked the cardholders’ accounts.14 Clearly, such examples confirm Europol’s conclusions that, firstly, serious and organized cross-border crime in the EU now involves groups from an increasing number of different countries, also from outside the EU. Secondly, virtually every illegal activity imaginable may now also be transnational. Finally, Europol concludes that the scale of traditional types of transnational crime, such as the trafficking of narcotic drugs, is also expanding.15 Given these developments, it is no surprise that the control of serious and organized cross-border crime is a high priority within the EU. As a result, the legal and organizational framework for law enforcement cooperation is expanded at an accelerated pace. EU policymakers see the JIT as an important instrument to promote effective investigation of transnational crimes. The next section presents a brief overview of the development of the legal framework for police cooperation. Section 3.2 addresses the discussion on JITs, starting in 1997 when the concept was included in the Treaty of Amsterdam (Article 29).

13  T. Spapens, ‘Crime Problems Related to Gambling: an Overview’, in T. Spapens, A. Littler and C. Fijnaut (eds.) Crime, Addiction and the Regulating of Gambling (Leiden/Boston, 2008) Martinus Nijhoff Publishers: pp. 19–54. 14  T. Spapens and C. Fijnaut, Criminaliteit en rechtshandhaving in de Euregio Maas-Rijn, Deel 1 (Antwerp/Oxford, 2005) Intersentia. 15  Europol, EU Organized Crime Threat Assessment 2006, The Hague.

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3. Cooperation in Cross-Border Criminal Investigation in the EU and the Development of the JIT Instrument 3.1. Development of the Legal Framework for Law Enforcement Cooperation in the EU Traditionally, police and judicial cooperation revolves around written requests for mutual legal assistance, or ‘letters rogatory’. Such a letter may state the actions required from the receiving party, the subjects involved, and the nature of the investigation. Procedures for handling letters rogatory are set out in an extensive legal framework of multilateral and bilateral conventions or comparable legal instruments. I will deal with each of these below. First, since the 1950s, the Council of Europe (CE) and the EU have drawn up many multilateral treaties, such as the European Convention on Mutual Assistance in Criminal Matters (1959), and the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union (2000). In some cases a smaller group of Member States initiated a multilateral treaty, which was then integrated into the legal framework of the EU. Examples include the Schengen Implementation Convention (SIC, 1990) and the ‘Treaty on stepping up of cross-border cooperation, particularly in combating terrorism, cross-border crime and illegal migration’, more popularly known as the Treaty of Prüm (2005). Secondly, states may also conclude treaties with one or more countries that lay down specific arrangements or expand on the provisions of conventions signed in the context of the CE or the EU, for instance. One example is the Benelux Convention on Extradition and Mutual Assistance (1962), signed by the Netherlands, Belgium and Luxembourg. This treaty already provided for cross-border hot pursuit before similar provisions were created in the SIC. Here too, just five Member States first initiated the SIC before it was integrated into the legal framework of the EU. The recent Benelux Treaty on police cooperation (2004) is clearly a forerunner of the Treaty of Prüm, particularly in enabling police officers of one Member State to assist on the territory of another. Thirdly, legal scholars often overlook the fact that the competent authorities of sovereign states may also enter into specific arrangements in individual cases. Although the legal framework for mutual legal assistance is extensive, it cannot provide for every question that may turn up in a cross-border criminal investigation. Agreements on a case-by-case basis are therefore still common practice. Specific requests do need to be weighed against national interests and general conventions such as the European Convention on Human Rights. Such agreements therefore usually (but not always) involve the national authorities. The case of a Dutchman who allegedly murdered his wife and hid her corpse in a forest in the Belgian Ardennes offers an example of such an agreement. After



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several months, he recovered the badly decomposed remains, put them in his car, and drove to Germany, where the police apprehended him. The Dutch authorities then asked the Germans to hand over the car, with the victim’s body still in it, to the Netherlands for forensic examination. None of the existing conventions contained a provision applicable to such a request, however. Finally, the Ministry of Justice of the German federal state of North Rhine-Westphalia approved the request after its legal experts had reviewed the matter and saw no objections.16 Cooperation by exchanging letters rogatory works well if the need to share information or take investigative action on foreign territory is relatively limited. A good example is the case of human smuggling described in Section 2. Although the illegal activity was highly international in nature, only a few letters rogatory were exchanged, for example to verify certain pieces of information or to establish the identity of persons using aliases. The system of mutual legal assistance may fall short, however, in complex cases where information stemming from different sources needs to be exchanged quickly or concerted investigative action needs to take place in two or more countries. Although the EU has taken great pains to speed up the handling of requests for mutual legal assistance, the system still lacks the flexibility needed in such circumstances. In an ongoing murder case, particularly in the early stages, the police will collect information from a multitude of sources. Forensic investigation and interviews with witnesses may produce all kinds of evidence and information, which in turn may require further investigation. For example, payment receipts may be found on the victim recording the time and location of a purchase, The investigators may then require security camera footage from the businesses involved. They may also want to ask the victim’s telecom provider for transmission data from his or her mobile phone, and then investigate certain numbers or locations.17 If such an investigation cuts across national borders, it is virtually impracticable to send written requests for every piece of information required or for every investigative action that needs to be undertaken. 3.2. Development of the Legal Framework for Establishing a JIT JITs can of course be a useful tool to overcome such problems whenever police officers of different jurisdictions need to cooperate closely. Germany, for example, has had joint teams involving the police forces of different federal states since

D. van Daele, T. Spapens and C. Fijnaut, De strafrechtelijke rechtshulpverlening van België, Duitsland en Frankrijk aan Nederland (Antwerp/Oxford, 2008). 17  Along with telephone numbers and the duration of a particular call, telecom providers also register ‘mast information’, which identifies the location where the mobile phone has made contact with the network. 16 

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the 1970s.18 This perhaps explains why the Germans were the first to bring up the issue in the EU (in the Customs Cooperation Working Group in 1994).19 The German delegation apparently also introduced the concept in 1996 in the working group preparing the EU MLA Convention. In March 1999, the Germans once again proposed to include a tangible provision on JITs in the Convention under preparation.20 The European Council also discussed the idea of joint teams during the Tampere summit of 15 and 16 October 1999. Conclusion no. 43 called for ‘joint investigative teams to be set up without delay, as a first step, to combat trafficking in drugs and human beings as well as terrorism’.21 The instrument was legally incorporated in Article 13 of the EU MLA Convention, signed in May 2000. But, as was observed in the introduction, the EU Member States proved slow to ratify the Convention. For that reason, the European Council proposed to create a separate Framework Decision to enable the establishment of a JIT in March 2000, but the proposal did not pass. The main argument was that there was no pressing need to duplicate the provision already incorporated in the MLA Convention.22 The situation changed dramatically after the 9/11 attacks on the New York World Trade Center. The extraordinary Council Meeting on Justice, Home Affairs, and Civil Protection of 20 September 2001 concluded that the EU needed to speed up the process of creating an area of freedom, security and justice.23 The Council quickly adopted the proposal for a Framework Decision on JITs it had rejected earlier virtually without discussion. It obliged the Member States to implement the provisions on joint teams in their national legislation before the end of 2003. The Council also adopted a Recommendation on a model agreement for JITs in May 2003.24 An Article 13 JIT implies cooperation between at least two EU Member States, with the team consisting of police officers of both states. Europol may also participate in the JIT. The most important advantage of such a team is that formal requests for mutual legal assistance are no longer necessary. Instead, if investigative action is required in a state that is party to the JIT, a team member 18  L. Block, ‘EU Joint Investigation Teams: Political Ambitions and Police Practices’, S. Hufnagel, C. Harfield and S. Bronitt (eds.), Cross -border Law Enforcement (New York/London, 2011) Routledge. 19  Council of the EU, Customs Cooperation Working Party. Revision and Updating of the Naples Convention of 7 September 1967 on Mutual Assistance between Customs Administrations, 8134/94, Brussels, 26 June 1994. 20  Block, 2011, op. cit. 21  C. Rijken, 2006, ‘Joint Investigation Teams, Principles, Practice and Problems. Lessons Learned from the First Efforts to Establish a JIT,’ Utrecht Law Review, Volume 2, Issue 2: 99–118. 22  Council of the EU, Press Release, 2251st Council Meeting Justice and Home Affairs, 27 March 2000. 23  Council of the EU, Conclusions Adopted by the Council (Justice and Home Affairs). SN 3926/6/01, Brussels, 20 September 2001. 24  Official Journal of the European Union, Council Recommendation of 8 May 2003 on a Model Agreement for Setting up a Joint Investigation Team, Brussels, 2003/C121/01.



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from that country can instigate such an action directly, exactly as they would have done in their home country. Furthermore, team members can freely exchange all the information acquired. The JIT must be based on a model agreement stating the signatory parties, the purpose of the JIT, the period covered by the agreement, the Member States in which the JIT will operate, the leader/leaders and members of the JIT and any specific or organisational arrangements.25 A JIT is supposed to be particularly appropriate when a Member State’s investigations into criminal offences require difficult and demanding investigations linked with other Member States, or when a number of Member States are conducting investigations into criminal offences in which the circumstances of the case necessitate coordinated, concerted action in the Member States involved. France and Spain set up the first Article 13 JIT in September 2004 to investigate ETA terrorism.26 It was followed by a Dutch-British team targeting drug trafficking in January 2005, a case that will be analyzed in section 7.27 Despite the high priority given to the legal framework for the establishment of joint teams, the number of JITs actually formed is relatively small. Between 2004 and June 2009, only about 40 JITs were established.28 France was by far the staunchest advocate of joint teams, and had participated in 21 different JITs. Of these, 12 were set up together with Spain. Finland has been another regular participator in JITs with its neighbouring countries of Sweden, Estonia and Lithuania. The topics of the JIT investigations involved terrorism, predatory crimes, drug trafficking, trafficking in human beings and counterfeiting.29 Although there are indications that the number of JITs is increasing, it is clear that the instrument is still not very popular, given that almost every investigation of serious and organized crime involves some sort of cross-border activity. Eurojust, Europol and several scholarly publications identify four types of problems explaining why JITs are not yet widely used.30 Firstly, according to Europol, the JIT is still an instrument relatively unknown to law enforcement officials throughout the EU, who may therefore not use the instrument in appropriate cases. One of the actions taken to better familiarize

25  Official Journal of the European Union, Council Recommendation of 8 May 2003 on a model agreement for setting up a joint investigation team (JIT), 2003/C121/01. 26  Block, 2011, op. cit. 27  There appears to be some confusion as to whether the French-Spanish team was genuinely the first JIT, because its members were not actually working under the same roof. Instead, the parties used the legal framework of the JIT mainly to be able to share information directly between separate investigation teams working in their own country. 28  Lilova, 2009, op. cit. 29  Block, 2011, op. cit. 30  European Parliament, Implementation of the European Arrest Warrant and Joint Investigation Teams at EU and National Level, Brussels, 2009, PE 410.671.

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police practitioners with the JIT is a manual, which the Council of the EU published in September 2009.31 The second category of problems concerns difficulties following from differences in the implementation of the JIT Framework Decision and the MLA Convention in the national legislation of the Member States. There are, for example, different rules concerning compensation of damages, or with regard to the tasks that a JIT member may actually perform on foreign territory. Also, the competences of the JIT team leader are not uniformly dealt with in the Member States’ implementation legislation.32 Thirdly, there are practical questions for which the existing legal framework does not yet contain specific provisions. An example is the carrying of service weapons by JIT members when they operate on foreign territory.33 Finally, there may be practical considerations not to form a JIT, which are not directly related to the investigation itself. One issue is the extra financial costs of a joint team, for instance for travelling.34 However, this overview of problems overlooks two aspects that are of practical relevance to the modest deployment of JITs. Firstly, investigators may opt for other forms of cooperation if they want to exchange information or even manpower in specific cases. These options are more ‘lightweight’ and therefore easier to use. The first is to exchange information directly between investigation teams operating independently in two or more countries and to coordinate investigative actions undertaken. The second is to agree to exchange personnel and equipment between investigation teams (in addition to information), and to allow police officers to operate on foreign territory. Secondly, although JITs can be established for all cross-border crimes, the potential added value of JITs to the criminal investigation very much depends on the question how a criminal group actually operates. The next section first addresses the specific problems encountered in two JITs in which the Dutch police participated, and one case in which the intention to form a joint team did not result in a JIT being established. Next, Sections 5 and 6 elaborate on the alternatives for a genuine JIT and the practical experiences with these alternatives in criminal investigations in the Dutch-Belgian-German border areas.

31  Council of the European Union, Joint Investigations Manual, Brussels, 23 September 2009, 13598/09. 32  S. De Moor, 2009, ‘The Difficulties of Joint Investigation Teams and the Possible Role of OLAF’ Eucrim, Issue 3/2009: 94–99, p. 95. 33  Lilova, 2009, op. cit. 34  Ibid.



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4. Some Experiences with Article 13 JITs in the Netherlands This section addresses two JITs in which the Netherlands has participated, and a third case in which an attempt was made to form a JIT. I focus on the operational aspects, and leave aside legal problems as much as possible. The first JIT began in November 2004 and involved the Netherlands and the United Kingdom, which were investigating a criminal group smuggling narcotic drugs.35 The second JIT was set up by the Netherlands and Belgium on 9 August 2006 and investigated a criminal group stealing and fencing motorcycles in both countries and in Germany. The third case involved a group of French and Belgian bank robbers who also committed crimes in the Netherlands. 4.1. Drug Smuggling (Netherlands-UK) This particular JIT evolved from an initiative launched by the Dutch Presidency of the EU in the second half of 2004. Its main aim was to experiment with a JIT, then still a novelty owing to the length of time needed to ratify and implement the EU Convention on Mutual Legal Assistance in many Member States. The National Crime Squad of England and Wales had been investigating a criminal group in the Liverpool area involved in wholesale drug dealing. During the investigation, it became clear that Dutch criminals were supplying the drugs from the Netherlands. The JIT was therefore set up to stop the smuggling operation. The UK part of the investigation, which focused on the drug-dealing side of the chain, was not an appropriate subject for the JIT, however.36 To prevent untimely disclosure of the UK investigation, the detectives involved in it had to be excluded from the JIT; otherwise, as members of a JIT, they would have been obliged under Dutch law to testify in the Dutch courts. Three British detectives were assigned to the JIT, two of whom were working with the Dutch team members in the Netherlands. The JIT mounted its investigation in January 2005; it ran for three months and resulted in the arrest and conviction of several persons in the Netherlands and the UK. In this particular investigation, the members of the JIT were unable to exchange information freely owing to differences in national disclosure rules. In the UK, sensitive information may be excluded from disclosure, whereas in the Netherlands all information used as a basis for investigative powers must be disclosed in court.37 Unfortunately, the competent authorities considered most of the important information sensitive in nature, and the members of the JIT were therefore barred from sharing it directly. Instead, to protect the source, 35  This case was evaluated in detail by: G. Vermeulen and C. Rijken, Joint Investigation Teams in the European Union. From Theory to Practice (The Hague, 2006) TMC Asser Press. 36  Rijken, 2006 op. cit. 37  Rijken, 2006, op. cit, p. 113.

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such information was first sent to Europol, which passed it on to the Dutch Desk; in turn, the Dutch Desk sent it to the JIT. There was also much discussion about the operational investigative powers entrusted to the UK members of the JIT on Dutch territory. The agreement stated that they would have full operational powers equal to those of Dutch police officers. The Dutch Ministry of Justice disagreed, however, and ruled that the Netherlands Criminal Code of Procedure did not allow foreign police officers working on Dutch territory to be given executive operational powers. This implies that foreign police officers seconded to a JIT may be present whenever investigative action is undertaken, but cannot contribute to it directly. Understandably, in such cases a police manager may question the benefit of sending more than one of his detectives over to participate in the JIT. Finally, practical issues involving the costs and the financial benefits gained from asset confiscation led to some discussion. Rijken recommended discussing and agreeing on the division of costs and benefits in advance in order to avoid this.38 4.2. Motorcycle Theft (Netherlands-Belgium) The second example involved the investigation of a criminal group responsible for the theft of motorcycles in the Netherlands, Germany and Belgium, particularly in the Meuse-Rhine border area. The Dutch public prosecutor deemed it useful to set up a JIT with Belgium and Germany (Federal State of North-Rhine-Westphalia). A draft agreement was drawn up in April 2006, but it took several months of discussion before it was signed. At the time, the JIT was still a new instrument. The Belgians, for instance, had never participated in a JIT before and the national authorities had to decide on the matter. Brussels decided to join the arrangement, mainly to gain experience. Although compliant, the police in the Tongeren district were unenthusiastic about having to make detectives available to the team; in their opinion, practically all the investigative work needed to be done in the Netherlands. The decision-making process was slow in Germany, because the federal authorities of North-Rhine-Westphalia decided to ask the national authorities in Berlin for advice. That was an unusual step, because the federal states are almost completely independent in police matters. Having reviewed the case, the Germans decided not to participate in the JIT. They doubted whether a JIT would offer added value in this particular case when compared with the usual channels of mutual legal assistance.

38 

Ibid., p. 117.



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Finally, in the Netherlands, the heads of the public prosecution service (College van Procureurs-Generaal, CPG) had issued a lengthy directive on the subject of a JIT calling for additional safeguards. One of those was that the CPG itself needed to review any JIT agreement before it could come into effect. Not surprisingly, all of this caused a considerable delay and it was not until August 2006 that the Dutch and Belgian public prosecutors were allowed to sign the agreement. Even after the start of the JIT, however, the Dutch and Belgian detectives attached to the team did not work together in the same office, but stayed at their own stations. The fact that they were part of a JIT did eliminate the need to send letters rogatory when, for example, they wanted to interview a witness in Belgium or request a copy of a verbatim report. This particular composition was later referred to as a ‘JIT-Light’. In the months it took to conclude the JIT agreement, the Dutch police had already started their investigation and achieved important results with unexpected speed. Detectives found the ‘chop shop’ where the stolen motorcycles were taken apart, rebuilt, given fake registration papers, and resold. During a search, they apprehended some of the main suspects on the spot. When the JIT finally became operational, then, the remaining investigative work mainly concerned backtracking the stolen motorcycles or stolen parts found in the “chop shop.” Detectives needed to establish where these had been stolen and to collect copies of verbatim reports drawn up by local police following thefts in Belgium, Germany and other countries (including the United States).39 In Belgium, such requests could be made directly to the members of the JIT, who then delivered a copy of the report, or approached the local police force that took the victim’s statement. In Germany, this required filing dozens of letters rogatory in different parts of the country, as the victims lived in different federal states. 4.3. Armed Robberies (Netherlands-Belgium) The third example involved the investigation of two armed robberies of money transports that took place in the south of the Netherlands at the end of 2005. The investigation began in the Netherlands but, as the perpetrators presumably resided in Belgium, the Dutch public prosecution service opted for setting up a JIT together with the Belgians. An agreement, however, was never signed because the Belgian police did not believe that a JIT would help identify and apprehend suspects. There were two main reasons for this. To begin with, the case was almost a mirror image of the investigation into motorcycle thefts. At first glance, the only link with the Netherlands was the fact 39  Unfortunately, the investigation team was unable to clear up how parts of motorcycles stolen in the United States had ended up in the Netherlands.

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that two of the armed robberies had taken place there. The network of criminals specialising in such robberies, mostly individuals of Moroccan descent, was located mainly in Belgium and the north of France. The Belgian police therefore reckoned that after initial forensic examination of the crime scenes, there would be little investigative work left for the Dutch police. Secondly, the Belgian and Dutch approach to the investigation was completely different. The Dutch focused almost entirely on solving the two armed robberies, whereas the Belgians aimed to infiltrate the network of grand banditism in order to obtain information about past events and, ideally, about intended robberies so that they could catch the perpetrators in the act. In their experience, there was little point in directing all their effort toward specific armed robberies. The Dutch police had also opted for an in-depth comparative review of similar cases in both countries. The Belgians refused to participate in this. They felt, on the one hand, that it would put excessive pressure on the few resources they had available and, on the other, that it would produce little new information. In the end, the Dutch police carried out the comparative analysis on their own. It must be said that the analysis did produce useful new information: it revealed that the French-Belgian network of robbers was also connected to perpetrators residing in the Netherlands. A DNA trace obtained after a robbery that had taken place a few years before was matched to a person detained in Belgium. However, the Belgian police were right in thinking that the exercise would not help solve the two robberies the Dutch were working on.

5. Parallel Investigations The examples presented in the previous section illustrate that administrative and legal difficulties may result in a decision not to establish a JIT. They also show how criminals operate across the border. Particularly when criminal groups only occasionally commit predatory crimes across the border, and when criminal cooperation is predominantly ‘glocal,’ an Article 13 JIT seems to add little to the efficiency of the investigation. In trafficking operations especially, parallel investigation may be a useful alternative. In such cases, as the term implies, the police set up a regular investigation team in two or more countries, and each team works on the case under the same conditions as it would have if the investigation had been a purely national one. During parallel investigations, the heads of the respective teams will meet regularly, for example weekly or even daily if needed, to share information and to fine-tune investigative actions. In urgent situations, they may share information by telephone or e-mail. The authorities may also agree to exchange and second police officers to the respective investigation teams to act as a liaison.



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Parallel investigations no longer require written arrangements, because the Council Framework Decision 2006/960/JHA on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union allows direct exchange of information, thus bypassing Interpol or Europol channels.40 Article 39 of the Schengen Implementation Convention had already allowed for this in EU border areas, and the police and the public prosecution service also had the option of drawing up bilateral agreements governing direct information exchange. The smuggling of illegal goods often involves relatively independent criminal groups based in different countries. Contacts are usually limited to meetings in order to negotiate business deals, and to smugglers picking up and delivering shipments. From an operational viewpoint, it is much more effective to investigate the suppliers and receivers simultaneously. If the police disrupt only one part of a smuggling line, it usually takes the dealers only a short time to establish a connection with another supplier and vice-versa.41 In such cases, the advantages of having detectives working together in a JIT are relatively limited, as I have shown in Section 3.1. It is of paramount importance that the police are able to share, continuously and immediately, any information regarding shipments or the persons organising smuggling operations. Interpol, Europol and other existing channels are too slow for this purpose. In order to deal with this problem, the police may mount parallel investigations. An example of a parallel investigation in the Netherlands and Germany is the Vagabond (Zwerver) case (2004), in which the Düsseldorf police cooperated with the Dutch National Criminal Investigation Squad.42 Kriminalkommissariat 21 of the Düsseldorf police in Germany launched an investigation after finding a stolen trailer packed with chemical waste from an ecstasy laboratory. The German police found leads in the trailer that could be traced back to German companies. This led in turn to the identification of two German nationals who had collected several orders of chemicals. Further research revealed contacts with a Dutch criminal group already suspected of buying chemicals that could be used to produce synthetic drugs such as acetone and hydrochloric acid. The German police then requested a controlled delivery of chemicals to find out who the receivers were. Following this request, the Dutch National Criminal Investigation Squad decided to mount a parallel investigation. The investigation teams in Germany and the Netherlands cooperated closely, exchanging 40  Official Journal of the European Union, Framework Decision on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union, L 386/89, Brussels, 29 December 2006. 41  Cf. T. Spapens ‘Case Report on the Rhein-Waal Euroregion’. In: M. den Boer and T. Spapens, (eds.) Investigating Organised Crime in European Border Regions (Tilburg, 2002) IVA: 73 – 92. 42  Van Daele et al., 2008, op. cit.

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information regularly and meeting in person whenever necessary. The teams were based in Helmond and Düsseldorf respectively, about an hour’s drive from each other. Over a period of several months, a series of controlled deliveries led to the discovery of storage facilities for chemicals and other materials used to manufacture synthetic drugs. A few months later, a shipment of chemicals was delivered directly to a large ecstasy laboratory in the Netherlands that the Dutch authorities had been trying to find for some time. It is clear from the above that parallel investigations can be mounted very quickly, if there are detectives available in both countries at the same time. This is often not as easy as it seems, however, because all available personnel are usually already tied up in ongoing cases.

6. Joint Teams Based on Framework Agreements In cases of tightly organized cross-border criminal cooperation and in situations where a criminal group regularly crosses the border to commit predatory crimes, more intensive law enforcement cooperation may be required. Experiences in the Netherlands show that such groups usually operate in border regions. The scale of the problem increased markedly since the abolition of fixed border controls (under the Schengen Agreement). Already in the second half of the 1990s, a number of notorious Dutch criminals moved to Belgium. Of course, they did not give up their lives of crime and as a result ‘integrated’ criminal groups emerged. These groups have distributed their criminal business processes as well as their members across the border area. These integrated criminal groups are mainly involved in producing synthetic drugs and cannabis herb, VAT fraud, swindling schemes, money laundering, and fencing stolen goods. The police forces of the border area quickly saw the advantage of close cooperation, and already in 1998, the first joint team was formed based on a framework agreement. The main aim of such an agreement is to solve the various organisational problems that arise during a cross-border investigation. For example, one country may lack the personnel or the equipment needed at a specific time or in specific circumstances. Deployment of foreign police officers may also be useful because they may be better able to understand specific languages or dialects when tapping telephones. Particularly during investigations in border regions, cross-border observations are an almost daily occurrence and would normally require a rogatory letter on every occasion. The investigation team can avoid the paperwork by arranging for it in a bilateral contract. The agreement is drawn up and then formalized by means of identical rogatory letters, which are exchanged reciprocally. The advantage of such a contract is twofold. First, public prosecutors can draw up the agreement themselves and exchange it directly in the form of a rogatory letter, without having to involve



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the Ministry of Justice or other national authorities. They can consequently avoid the red tape involved in an Article 13 JIT and finalise the agreement with greater speed. Secondly, a bilateral contract allows for broader arrangements than the existing legal framework for mutual legal assistance. An example of this is a provision to lend specific equipment to each other, and to have it installed on foreign territory by police officers from the providing country. There is no specific provision for this in any of the existing treaties. These advantages are the principal reasons why framework agreements are still in use in the DutchBelgian border area today. A first example of such an investigation concerned a criminal group manufacturing and trafficking in ecstasy in the Meuse-Rhine Euroregion at the end of the 1990s. Some of the groups’ members resided in the Netherlands, whereas others, most of them also Dutch nationals, lived in Belgium. The group operated ecstasy laboratories in both the Netherlands and Belgium, and it procured chemicals from both Dutch and Belgian suppliers. When the Dutch police decided to launch an investigation, it was clear that close cooperation with the Belgian police would be required. The Dutch criminal group furthermore maintained close ties with a Belgian group also involved in ecstasy production. The Special Investigation Branch of the Belgian Gendarmerie of Maaseik simultaneously investigated this group.43 Following preliminary discussions, the police and the public prosecution service agreed on close cooperation and drew up a framework contract setting out the specific arrangements. The heads of the investigation teams and the public prosecutors responsible would review the contract every month and renew it for as long as deemed necessary. To begin with, the contract allowed for the direct exchange of all information gathered during the investigations in the Netherlands and Belgium. This included photographic images of the subjects under investigation and recordings of wiretaps. Secondly, it was agreed that members of the Dutch and the Belgian investigation teams could be exchanged whenever deemed necessary. The contract also allowed members of both teams to be present during interviews with witnesses and interrogations of suspects in the Netherlands and Belgium and to listen in on live wiretaps. Thirdly, the contract permitted the installation of Dutch cameras on Belgian territory and vice-versa, the installation and use of tracking devices in both countries, and cross-border surveillance whenever necessary. It also allowed Dutch surveillance teams to commence an operation on Belgian territory, in the presence of at least one competent Belgian police officer, and vice-versa. Finally, ten sets of Belgian and ten sets of Dutch license plates were made available to the corresponding surveillance teams. The framework 43 

The Belgian police was reorganized in 2001 into a federal and a local level.

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contract made almost all further requests for mutual legal assistance superfluous. It only became necessary to file letters rogatory at the end of the investigation, when the police were planning to conduct house searches and apprehend and interrogate suspects. The arrangement can be considered revolutionary, even by today’s standards. It is clear that a contract of this kind requires high levels of personal trust between the heads of the police and the public prosecution services on both sides of the border. Unfortunately, the reorganisation of the Belgian police in 2001 meant the arrival of many new faces. The Dutch police in particular had to work on establishing new relationships of trust with their Belgian counterparts. As a result, it proved impossible to conclude new framework contracts for several years. From 2005 onwards, however, similar arrangements have again been agreed, for example focusing on the investigation of criminal groups stealing lorries and loads.

7. Conclusions The examples given above illustrate that an Article 13 JIT offers advantages as well as disadvantages when compared to parallel investigations or cooperation based on a bilateral framework agreement. In the following, I briefly sum up the main points as illustrated by the cases examined above. My first conclusion is that, in operational terms, an Article 13 JIT does not offer as clear-cut an advantage over the other options as one might think. A possible advantage is the fact that the competent authorities can base a JIT on formal rules. Theoretically, the establishment of a JIT should therefore be less dependent on good personal relationships than an informal arrangement usually is. On the other hand, specific national rules and regulations sometimes prevent the exchange of information or the ability of a JIT to act as a truly integrated team. Furthermore, if criminal cooperation is ‘glocal’ and loosely knit, for instance in smuggling operations, there appears to be less benefit in mounting a JIT than in the case of a close-knit criminal group running highly integrated operations across two or more countries. A JIT seems to be particularly useful in border areas where such highly organized groups operate. A JIT also appears to be less effective when the bulk of the investigative action is to take place in only one of the constituent countries. Unfortunately, investigators seldom have a clear picture of how a criminal group operates at the start of their investigation, which makes it difficult to determine beforehand whether or not a JIT is needed. One important disadvantage of a JIT from the viewpoint of the local magistrates and police is that they are often required to consult national authorities. Not only do they generally dislike having the Ministry looking over their shoulders, but it also slows down the decision-making process. Instead, the public prosecutor



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can generally conclude a bilateral framework agreement independently and thus avoid discussion about any specific arrangements that may be pushing the envelope of what is legally feasible. Finally, managers heading criminal investigation departments are generally not too keen on relinquishing any control over ‘their’ detectives. Parallel investigations offer them more leeway than a JIT, for example to reassign detectives should more pressing cases come up. They can also terminate a bilateral agreement more easily than a JIT agreement, because the latter often also involves the national authorities. Last but not least, they may worry about their ‘side’ not getting credit for a successful operation. Summing up, this brief tour has shown that everyday police practice indeed calls for other instruments beside a JIT, to be used flexibly against criminal groups operating across the national borders.

3. The Foundation of European Police Services

Euro-Cops? Just Say Maybe: European Lessons from the 1993 Reshuffle of US Drug Enforcement Frank Verbruggen 1 Assistant Criminal Law, School of Law, K.U. Leuven, Belgium

1. Introduction ‘Kohl Plan for Europol gets thumbs down’.2 Newspapers announced last autumn’s break­down of the negotiations on a Europol Convention as a personal political defeat for German Chancellor Helmut Kohl, who was president of the Union. Not without reason. The creation of Europol and its development into a European FBI was known to be one of his pet pro­jects.3 This article was adapted from a paper written as part of Yale Law Schools LLM programme. J. Carvel, ‘Kohl Plan for Europol gets thumbs down’, The Guardian, 27 October 1994, p. 1. 3  The Germans have always been the principal advocates of a reorganization of the police in the European Union. One obvious reason for this is their country’s political and geographic situation. It has borders with 9 different countries, and since the Second World War it had a very lenient immigration policy combined with the long-standing presence of foreign military. Some of them frequently targeted by German (RAF) and especially foreign (Provisional IRA) terrorists. No other country has been confronted with the internationalization of crime to the same extent as Germany. But another reason for the Europeanization effort is that the Germans have always seen anchoring Germany in European structures as the best way of keeping the ghosts of the past from re-emerging. Remembering the horrific experience of the nazi police state, this argument should not be discarded lightheartedly. Finally the Germans had a federal system imposed on them after World War II, which gave the ‘Under’ primary jurisdiction in police matters, but kept criminal law and procedure (with the exception of some by-laws) entirely on the federal level (H. Lensing, ‘The Federalisation of Europe: Towards a Federal System of Criminal Justice’, European Journal of Crime, Criminal Law and Criminal Justice, 1993 3, p. 216.). A federal police agency, the Bundeskriminalamt (BKA), deals with interstate and international crime. The Germans therefore had a significant experience in cooperation between different police forces. They still think of the BKA as a model police force. Initially, their internal discussion on the idea of setting up a ‘Europol’, a police unit within the framework of the European Union, was hardly noticed outside the country’s borders. The other EU-members were ‘not really interested’. There were psychological, historical and practical reasons why governments preferred more informal or bilateral cooperation. But Germans do not easily take no for an answer. They have been able to convince the other countries that Europe really needed a ‘Europol’. The name ‘Europol’ had been circulating in literature and bureaucratic projects for many years, but merely as a vague idea for an indefinite future. It was at the European Council meeting in Luxembourg in June 1991 that the idea got official recognition 1  2 

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It was Kohl who insisted on the insertion in the 1991 Maastricht Treaty European Union (TEU) of Article K. 1(9), which states that EU-countries will regard police co-operation as a matter of common interest in connection with the organization of a Union-wide system for exchanging information within a European Police Office (Europol). The Germans sponsored the Supplementary Declaration on Police Co-operation which promised more co-operation in the fight against organized crime and drug trafficking.4 Article K constitutes the TEU’s Title VI, the so-called ‘Third Pillar’ supporting the EU: European Co-operation in the Fields of Justice and Interior Affairs (JHA). That is the intergovernmental part of the Treaty, which means the sovereignty remains with the Member States and does not shift to the supra-na­tional level and that the role of Community institutions is limited. The Member States con­sidered Europol as so important and potentially intrusive as to require a separate Convention. A painful negotiation process was concluded at the Cannes Summit with a (conditional) agreement. If everything works out, the Europol Convention will constitute the legal basis of Europol and determine the scope of its activities. In the meantime senior police officials of the EU countries have been dispatched to Euro­pol’s headquarters in The Hague to investigate the most efficient means for exchanging intel­ligence on drugs trafficking and associated money laundering activities. This limited5 first (pre-Convention) Europol is called European Drugs Unit (EDU)6 and has been developed by one of the ‘classical’ for the first time. Chancellor Kohl put a motion on the table which called for the creation of a single European Criminal Police Office that would combat international and European crime. He was thinking about a European version of the American FBI or the German BKA (A. Martin, La coopération des polices en Europe, en 1993 (Toulouse 1992) 96). Despite their initial surprise, a majority of the other ministers accepted the motion. The British minister dissented. At the same meeting guidelines for Drugs Liaison Officers, who would coordinate intelligence-exchange in relation to drugs trafficking, were adopted. 4  This Declaration clearly echoes ideas the Germans brought forward at the Luxembourg Council meeting of 1991. (J. Benyon, L. Turnbull et aI., Police Co-operation in Europe: An Investigation (Leicester 1993) p. 159.) 5  The other matters falling within this field, summed up in Art. K.I: I. asylum policy; 2. rules governing the crossing by persons of the external borders of the Member States and the exercise of controls thereon; 3. immigration policy and policy regarding nationals of third countries; 4. combatting drug addiction; 5. combatting fraud on an international scale; 6. judicial cooperation in civil matters; 7. judicial cooperation in criminal matters; 8. customs co-operation. The total budget for the EDU is two million Ecu, half of which is for personnel and half for equipment and costs. The central staff, excluding the liaison officers from each country (the UK, for instance, is sending five officers, police and customs) is 18 (including four analysts, five information officers, and nine administration people). (X, ‘Europol HQ opened’, Statewatch, March-April, 1994, p. 5.) With the accession of Sweden, Finland and Austria there will bee an expansion. Austria’s vicechancellor Busek named Europol as one of his country’s priorities (J.M. Amoros, ‘La “Europol” ha de ser un objetivo prioritario de la Union Europea’, ABC, 3 January 1995, p. 30.) 6  The initial name was EDIU, European Drug Intelligence Unit. The new name indicates that its activities might go beyond mere intelligence one day. It is no coincidence that the embryo of European law enforcement is the EDU. The area of international criminal law enforcement in which police co-operation has developed most, is the fight against illegal drug trafficking. In 1994



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co-operation mechanisms, TREVI IV. Typically, its legal basis is JHA Council Common Action, an agreement between the respective Interior Ministers’.7 The genesis of Europol has now entered a decisive phase, although the idea itself did not come out of the blue. It is yet one more institution in the plenitude of different organizations, structures and regimes that constitute the European networks in matters of criminal law enforce­ment and police co-operation. Although the TEU is a first co-ordination attempt, an immense amount of competition and overlap remains, combined with a mind boggling lack of trans­parency. This situation is unhealthy, potentially dangerous and in the long run untenable. The very same complaint was the underpinning of the 1993 reform plans that the Clinton administration (some of its members at least) had in mind for a complete restructuring of American law enforcement. It was conceived as part of a general scheme to reform the federal government’s entire bureaucracy, the ‘reinventing government’ project. A task force headed by vice-president Al Gore diagnosed America’s ‘ill’ government bureaucracy and proposed reforms to bring remedy in the so called Report of the National Performance Re­view (NPR).8 From Red Tape to Results, was the government’s promise. The first phase of the reform of federal law enforcement would be a merger of two of the biggest and best known agencies, the DEA and the FBI. In this article we will try to illustrate how a look at our distant neighbour might provide an interesting perspective for the study of international law enforcement in Europe. The Federal Bureau of Investigation (FBI) is precisely the agency that is time and again used in the Eu­ropol-discussion, both as a negative and as a positive model. The US Drug Enforcement Administration (DEA) is the chief exponent of international drug prohibition enforcement. Ethan Nadelman describes it as the first global police agency, albeit a very peculiar one: a na­tional agency operating on a global scale. It has been the herald of the global ‘war on drugs’ and has induced law enforcement all over the planet to adopt its strategies and techniques. Surprisingly enough, the American federal police system is rarely studied as a feasible model for Europe. The hesitations in doing so not only root in a suspicion towards a centralization of European criminal law enforcement, but also spring from misconceptions of what the situation in the US is like. a number of successful international police actions illustrated this. But drug traffickers seem to be getting the upper hand nevertheless (J. Sutton, ‘Narcotics Traffic Overwhelms European Law Enforcement’, Criminal Justice, Vol. 3, No.3, 1993, p. 1 & p. 4.). 7  See: EDUI Europol Report on the activities of the Europol Drugs Unit between 1 January and 31 December 1994 – First year progress report, 4533/2/95 EUROPOL 8 REV 2, Brussels, 2 March 1995 (restricted) and W. Bruggeman, ‘Europol: een groot huis of een lege doos?’, Politeia (Belgium), 1994, 10, pp. 19–21. 8  A. Gore, Creating a Government that Works Better and Costs Less: From Red Tape to Results (Washington DC 1993).

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Though legal rules are obviously relevant, this article looks at the American 1993 reform from a somewhat broader perspective. Some sociological and psychological elements (which played a central role in the outcome of the case) will get their fair share of attention. We will weigh the arguments pro and contra and conclude that the merger might not be a bad idea. However we think it should not be brought about all at once, as in the initial 1993 proposal. A step by step integration seems wiser and more realistic and the (minimal) reform that was eventually made by the Attorney General might be just one more step in the right direction. Subsequently, we will point out some features that might be of interest for the future police co-operation in Europe.

2. From Red Tape to Red Cheeks: The Clinton Administration Back­ing off of Its Initial Drastic Reform Plans 2.1. The National Performance Review and the Proposed Streamlining of Federal Law Enforcement 2.1.1. The General Structure of American Law Enforcement 2.1.1.1. Police in America9 Under the American Constitutional system the federation has only those limited powers the states have entrusted to it.10 Many Europeans fail to see that law in the US is to a very great extent a matter of local or state – as opposed to federal – law. Consequently, so is law en­forcement and criminal justice policy.11 Subsidiarity, a key notion of European integration these days, is deeply embedded in the American constitutional system. The fragmentation of police authority over separate units of government is a quintessen­tial element of the organizational structure of American policing. Most of the estimated 40,000 different police agencies are units of local government (counties, cities, townships), but close to a thousand are part of a state government and about fifty are part of the federal government. The distribution

9  See: J.A. Inciardi, Criminal Justice (Fort Worth (993), Chapter six: Law Enforcement in the United States: History and Structure, pp. 163–193 and S. Walker, Police in America: An Introduction (New York 1992) p. 415. 10  Article 1, Section 8 US Constitution. 11  C. Blakesley, R. Craig Curtis and E. Simien, ‘Criminal Justice and Possible Winds of Change in the United States’, International Review of Penal Law (1992) p. 1447.



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of sworn police officers in the US12 is 82% local,13 10% state14 and 8% federal. Most police at the federal and state level are ‘specialised’, which means their authority is limited to a specific group of criminal laws or are restricted to a special geo­graphic enclave (e.g. a national park). Many consider the Federal Bureau of Investigation (FBI) to be a general agency because its responsibilities extend into all major areas of federal criminal law. However, as an investi­gative agency, it does not bear the general peacekeeping, traffic control and social service functions that occupy much of the effort of general police agencies at state and local level. Traditionally it deals a lot less with ‘street crime’ and more with ‘white collar’ offences. Throughout American history a number of crimes that were traditionally within state jurisdic­tion have been made federal crimes (see 2.1.2.). Some of them have brought more FBI agents on the streets.15 Since 1982 it has had jurisdiction in drug matters. The Bureau also has the country’s primary responsibility for counterespionage and conducts background checks of candidates for sensitive functions in the federal government and judiciary. The Drug Enforce­ment Administration, on the other hand, is a single mission agency. It is dedicated com­pletely to the enforcement of federal legislation concerning the use and distribution of narcotics and other dangerous drugs. Both are Administrative Agencies. The FBI has a Di­rector who reports to the Attorney General, the DEA its Administrator, who reports

J. Inciardi, op. cit., p. 173. The overwhelming majority of the police agencies are ‘general’ police agencies, which means they have authority to enforce all criminal laws within the jurisdiction of their unit of government. At the county level, that will usually be the sheriffs department. It tends to concentrate on communities that lack a police department of their own, to avoid overlap. Local police agents at the city and township level largely outnumber the sheriffs and their deputies however. Over 90% of all municipalities (or other communities, like universities for instance) with a population of more than 2,500 have their own police force. The departments are usually quite small (two thirds have less than 20 officers), with the exception of some 100 that have more than 300 officers. The New York City Police Department is, with well over 20,000 officers, the main police force in the City, but the Transit System and the Public Housing Authority have police forces of their own, each of which is larger than some state agencies. Furthermore state and federal agencies and an interstate agency, the New York/New Jersey Port Authority Police operate in the Big Apple. 14  At the State level, the key general police force is the state police. For instance that in Arkansas, Delaware, New York, Michigan, Pennsylvania and Vermont. They perform routine patrol and traffic regulation, but also have numerous support services including specialized units that investigate major crimes, intelligence units investigating organized crime and drug trafficking, juvenile units, crime laboratories, and statewide computer facilities for identification and intelligence information. California, both Carolinas, Florida, Georgia and Ohio focused state police responsibilities on traffic control and on crimes in specific locations or under specific circumstances (on state highways or involving state property). (J. Inciardi, op. cit., p. 181.) 15  For instance, the FBI disposes of a hostage rescue team (HRT), that came into the spotlight with the dramatic final raid on the Branch Davidian compound in Waco, Texas (R. Kessler, op. cit., pp. 282–285.) 12  13 

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to a Deputy Attorney-General.16 The Attorney-General is the member of the President’s Executive who is responsible for the Department of Justice. The Department of Justice’s17 task is to enforce the federal laws (immigration, banking, antitrust, fraud against the federal government, laws relating to federal employees, but also ­infra – narcotics and organized crime legislation …). Other federal Departments (especially Treasury and Defence, but also Interior, Agriculture, …) have certain specific law enforce­ment duties in their respective areas of competence. The Department of Justice also furnishes legal counsel in federal cases and sets the rules for other departments, represents the govern­ment in legal matters (in particular, it conducts all cases in the Supreme Court in which the United States is concerned) and serves as the government’s internal legal adviser. The Attorney General supervises and directs the policies of the US attorneys (federal pub­lic prosecution), the US Marshals18 (responsible for the execution of writs, process and or­ders issued under the authority of the US in the different judicial districts), but also for the federal witness protection program19 and the transport of prisoners, and the federal penal in­stitutions. Some of the federal agencies have succeeded in acquiring a high profile. Consequently, many outsiders overestimate their importance within the American criminal justice system. Significantly, the prison population in the United States consist of 11 state prisoners for every federal prisoner. State cases can deal with the most serious and complicated crimes (or­ganized crime, complicated embezzlement schemes, etc.). The FBI, the biggest federal law enforcement agency, has just over 10,000 agents for a US population of some 250 million people …

A 1981 reform forcing the DEA to report to the Attorney general through the FBI Director, did not have the desired effect. It caused a lot of friction and tension. As a result of this the DEA Administrator reports to a Deputy Attorney General and the DEA has since been a semiautonomous subsidiary of the FBI ever since. 17  About the DOJs history and organizational structure: D. Torres, Handbook of Federal Law Enforcement (Westport, CT 1984 – somewhat outdated), pp. 15–39. 18  As Western-fans probably know, in the nineteenth century US Marshals often were the rare federal officers representing the Union in the frontier territories. Marshal is however also the name of law officers in certain cities having powers corresponding to those of a constable or sheriff, i.e., administrative head of city police or fire department. They should not be confused with US (federal) Marshals. 19  A. Beier, ‘Bescherming van kroongetuigen, het Witness Protection Program in de Verenigde Staten, Delikt en Delinkwent (Nl) (1995) pp. 122–134. 16 



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2.1.2. The Expansion of Federal Criminal Jurisdiction 2.1.2.1. Indirect To repeat: criminal law in the United States is essentially a matter of state law.20 Neverthe­less, the ultimate limits are drawn by the federal constitution and the (evolving) interpretation given to its articles by the US Supreme Court. The most important procedural guarantees for suspects (but not all of them) have been extended to the criminal procedure of the states, through the so-called ‘incorporation doctrine:21 It was particularly in the period of the War­ren-court in the fifties and sixties, that the federal constitution was used to protect the civil rights of members of the minorities against abuse by local and state police.22 State and local authorities, particularly in the southern states, were condoning, if not supporting, illegal police actions against the civil rights movement.23 2.1.2.2. Direct From the very beginning of the American republic, the federation also possessed full jurisdic­tion to criminally sanction infractions of its laws. It could, and did, establish police agencies to enforce those laws. For many, many decades this jurisdiction was used with moderation. As we will see later, fear of central 20  See B. Latzer, State Constitutions and Criminal Justice (Westport (CT) 1991) p. 218. Of course, the states have a Constitution of their own, which usually contains a list of procedural civil rights too. But state officers who respect the constitutional rules of their state, can still violate the federal constitution (for instance by failing to read an arrestee his Miranda rights – the famous ‘You have the right to remain silent …’ 3 warnings – when such warnings are required under Supreme Court case law). It can also work the other way around: often states offer more constitutional guarantees than the US Constitution. Since federal agents are not bound by them, local law enforcement officers often try to build federal cases together with federal agents. That allows them to obtain search or arrest warrants more easily. The higher sentences can also be a reason for choosing prosecution in the federal system. 21  L. Friedman, Crime and Punishment in American History (New York 1993) p. 269, calls this process the ‘nationalization of the standards of criminal procedure’. 22  Among the provisions that have been held applicable to the states under the Fourteenth Amendment: – The Fourth Amendment’s prohibition against unreasonable seizures and searches (Wolf v. Colorado, 338 US 25 (1949)) and the exclusionary rule which prohibits the use of items obtained as a result of an unreasonable search and seizure as evidence against a criminal defendant (Mapp v. Ohio, 367 US 643 (1961)). – The Fifth Amendment privilege against forced self-incrimination (Malloy v. Hogan, 378 US I (1964)) and the bar against double jeopardy (Benton v. Mary/and, 395 US 784 (1969». – also Sixth Amendment rights (speedy, public, jury trial; attorney; witnesses) and the eight amendment privilege against cruel and unusual punishment. But some rights under the federal constitution have not been held applicable to the states: the Fifth Amendment right to indictment by a grand jury (Hurtado v. California, 110 US 516 (1884) and perhaps the Eight Amendment prohibition against excessive bail (issue has not yet been determined by the Supreme Court). 23  Even though it fought the Ku Klux Clan and brought the murderers of three civil rights workers to justice, the FBI was, in Friedman’s words, ‘a most reluctant ally, if it was an ally at all, in the battle for civil rights.’ Hoover’s personal vendetta with Martin Luther King Jr. is still one of the darkest pages in FBI history (R. Kessler, op. cit., pp. 299, 368.)

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government is deeply rooted in the American popular psyche and state level interest groups were strong enough to neutralize any champions of stronger central power. In the words of M.A. De Feo:24 The first legislative acts of the new American government were laws to repress crimes which threatened its survival politically or economically, such as treason, evasion of customs and excise duties, counterfeiting of money and theft of government property or from the post. Admittedly the crimes subject to American federal jurisdiction were few at first, being only those essential to defend the existence of the governmental structure and its essential functions, but that inherent federal penal jurisdiction was ex­plicitly recognised in the Constitution and was exercised independently of any state.25

Later on federal law (enforcement) began to deal more and more with so-called ‘non-federal interest’ crimes. This expansion of an independent federal investigation and prosecution was not part of a designed scheme, but merely a series of tactical responses to changing condi­tions. Initially the federal taxation power was used to justify federal action. From the twenties onwards it was particularly the federal jurisdiction to regulate interstate commerce that served as the legal foundation.26 By using the legal fiction that for a certain category of crimes an impact on interstate commerce was inherent in the formulation of the offence, even crimes that have their impact completely within the borders of a particular state could become federal offences. Nowadays the situation is such that, if need be, an element can al­most always be found to justify federal jurisdiction.27 That will usually coincide with the ju­risdiction of local and/or other federal agencies.28 24  Senior Counsel for International Law Enforcement (of the Department of Justice) in the US Embassy in Rome. 25  M.A. De Feo, ‘The US Experience in Federal Policing, a Model for Europe?’, Delikt en Delinkwent (Nl) (1994–95) p. 478. 26  C. Bradley, ‘Racketeering and the Federalisation of Crime’, American Criminal law Review (1984) pp. 213–266. 27  FBI Director Freeh notes that ‘the growth of FBI jurisdiction has continued unabated. For example, in the past decade alone, Congress made the FBI responsible for investigating parental kidnappings, parents who travel interstate to default on child support payments, and car jackings. Contemplated areas of jurisdiction include drive-by shootings, interference with access to abortion clinics, stalking, and interstate travel to abuse a spouse or intimate partner.’ As a bureaucrat he wisely adds that he does not make value judgments about the validity of those pieces of legislation. But at the same time he voices fears that this rapid, unchecked federalization of criminal activity could overwhelm the limited resources of federal law enforcement agencies, including the FBI, and that it could create unrealistic expectations among the American public. (L. Freeh, ‘Responding to Violent Crime in America’, FBI Law Enforcement Bulletin (1994) p. 5.) 28  An interesting offence is that of bank robbery. It has in principle all features of a local threat to public safety. As a consequence the local police forces are competent to conduct an investigation and arrest suspects. The banking business has however for two centuries been a tug of war between state and federal authorities. Through an accident of history, almost any bank needs to accede to a federal scheme, the Federal Deposit Insurance Corporation (FDIC), to give the banks depositors a protection against bank insolvency. This very narrow base has been used to justify federal criminal jurisdiction and allowed Hoovers G-men to go after their bosss favourite targets:



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Although, as we pointed out, in statistical terms federal criminal law is a very small part of a the total criminal justice operation in the US, it would also be a mistake to underestimate its impact. The federal institutions (the gov­ernment with its investigators and prosecutors, Congress and the Judiciary) have an import­ant voice in setting crime policy: they strongly influence the practice of state and local authorities. The federal government also gives money to support local law enforcement. In many ways, crime in the US has become a national issue. As a consequence of the system of dual federal and state sovereignty and of the ab initio existence of federal law enforcement, few structured co-operation mechanisms exist between states or municipalities. The extradition of fugitives from one US state to another proceeds in a manner quite similar to that of international extradition. Similarly, mutual assistance in in­vestigative matters was lacking until one generation ago and is still mostly limited to the ser­vice of legal process. Out-of-state evidence-gathering remains legally underdeveloped. The lack of police power for officers who are operating outside their jurisdiction is often reme­died by ad hoc agreements, which usually force them to act under the direction of a local of­fi cer. They can also be made Deputy US Marshals when their mission is helping to capture a fugitive.29 In recent years cross-designation of officers between different agencies, federal and local, as been increasingly popular and successful. We would like to stress that the ‘federalization’ of criminal law (like that of other legal matters) and its enforcement has always been a very controversial matter. The expansion of ‘non-federal interest’ crimes met a lot of resistance and many people think that the federal in­stitutions, especially the Supreme Court, have gone too far in restricting the powers of State legislators and Courts. Ironically in the last decades the Republican presidents (Nixon and es­pecially Reagan and Bush) made the biggest contributions to ‘federalization’ of criminal law through their ‘war on drugs’, while their party is the traditional champion of strong state au­tonomy. 2.1.3. Drug Law Enforcement The US gives a pivotal role to law enforcement of its drug control policy.30 Local and state law enforcement form the bulk of the drug ‘warriors’. More than 75% bank robbers. Hoovers opinions were not unimportant when a decision whether or not to make a certain crime a federal offence was taken. 29  M.A. De Feo, op. cit., p. 483. 30  The drug control goals of law enforcement are to: control drug use, control crime including control of the systemic violence associated with drug dealing and property crime that supports drug habits, prevent the development of strong and stable criminal organizations and to protect neighbourhoods. (M. Zawitz, ‘Drug law enforcement, in: Bureau of Justice Statistics (ed.), Drugs, Crime and the Justice System (Washington D.C. 1993) pp. 141–164. Two thirds of the anti-drug

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of state and local law enforcement agencies have primary responsibility for drug enforcement. There is also a serious federal effort, with numerous agencies in different government departments making their contribution. Within the Department of Justice many agencies have operational responsibility for drug control. The DEA has primary responsibility for enforcing federal drug laws and policies. The FBI has concurrent jurisdiction with the DEA over federal drug laws, focusing on com­plex conspiracy investigations. The 93 US attorneys, the chief federal law enforcement of­fi cers in their districts, are responsible for investigating and prosecuting federal drug offences and are often involved in drug task forces and asset forfeiture cases. Our focus on FBI and DEA should not overshadow the importance for the daily drug enforcement practice of the Immigration and Naturalisation Service and the US Marshals Service. Several other agencies and Departments are also involved in the drug supply reduction: in the first place the US Customs Service,31 the Internal Revenue Service,32 and the Bureau of Alcohol, To­bacco and Firearms (BATF)33 in the Treasury Department. But also others, like the US Coast Guard,34 the Federal Aviation Administration,35 both under the Department of Transport­ations. Finally, there are the special contributions of the US Department of Defence,36 the Department of State and the US Postal Service to the drug effort. A government-wide, multi­ source intelligence and analytical network (FinCEN) supports the detection, investigation and prosecution of domestic and international money laundering and other financial crimes by federal, state and local law enforcement agencies. Along with this law enforcement prong of federal drug policy there are others budget are spent on law enforcement. To get an idea about the incredible means that are used in the drug war, see the ‘gung ho publication: N. Wiley, Drug Enforcement Air Force (Customs, Coast Guard, CAP, DEA and DoD Airborne Drug Busters) (Osceala, WI, 1992), p. 127. 31  The Customs services role in the war on drugs is very important. Our focus on DEA and FBI could be misleading: more anti-drug money is spent on Customs than on the FBI. According to the Gore draft, in the fiscal year 1992 the US Customs Service received $ 758 million. The FBI was given $ 205 million for the war on drugs while the INS got $ 141 million for its anti-drug effort. 32  IRS assists with the financial aspects of drug investigations, particularly money laundering. Its Criminal Investigation Division (CID) has about 2,800 special agents, 1,100 of which assigned to narcotics. 33  The BATF investigates weapons offences, particularly Federal Drug offences that involve weapons. This smaller agency has recently come into the spotlight with the fatal raid on the Branch Davidian compound in Waco and because of the fierce campaign the gun lobby has mounted against it. Apparently they were the principle target of the Oklahoma City bombing by right wing extremists. This Treasury agency originally had a limited charter, dealing with taxation and regulatory functions, but it underwent a bureaucratic evolution to a broad mission including the investigation of laws related to drugs, gangs, explosives and violent crimes. 34  It enforces federal laws on the high seas and waters subject to US jurisdiction. It is involved with the interdiction of drugs smuggled via water into the US. 35  Its radar system assists in detecting suspected air smugglers. 36  The DoD is responsible for the detection and monitoring of aerial and maritime transit of illegal drugs into the US. See N. Wiley, op. cit.



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(education, prevention and treatment projects). The co­ordination of that overall drug effort lies with the so-called ‘drug czar’ in the Administration. With so many organizations involved, territory battles, rivalry, overlap and co-ordination problems are hardly surprising. So the Clinton government decided to act. 2.2. The Absorption of DEA and BATF into the FBI 2.2.1. Background Among the many proposals in the Report of the National Performance Review, there was not a single one that caused the same stir as that on restructuring federal law enforcement. Even before the Report was presented, the merger plans were leaked and a strong opposition was mounted. Although the Clinton administration presented it with a blare of trumpets, the merger idea cannot have come as a real surprise to anyone. Ever since the DEA’s birth in 1973, rumours about its abolition have been haunting it. The Carter administration was the first to develop a scenario for the DEA’s insertion into the FBI. But the plan was never carried out. In the fol­lowing decade at least three different Attorney Generals studied and rejected the merger op­tion. The idea of the ‘Reinventing government’ task force was simple: since different agencies spend a lot of their time and energy on similar or even on the same matters, merging them into one agency would eliminate the existing overlaps and the destructive competition37 be­tween the different agencies. Above all, eliminating unnecessary duplication would save the government a lot of money.38 In fact, the preliminary cost of merging the DEA into the FBI would be about $110 million, but the result in savings would be $83 million in the first year after the merger and $63 million in subsequent years.39 It was precisely to get rid of the fragmentation and inter-agency rivalry that had plagued the federal crackdown on illegal narcotics, that the Nixon administration had created the DEA in the first place. Within it, all the federal agents engaged in the war on drugs could be brought – for a large part – under one roof. Nevertheless, twenty years later more than 30 federal agencies deal in one way or another with the drug issue. As we pointed out in 1.1.3., many 37  Typically unhealthy competition between law enforcement agencies leads one agency to arrest the others informers or under cover agents, intercepting another agency’s controlled delivery, leaking information that is detrimental to the other agency’s investigation etc. 38  When the $ 50 million National Drugs Intelligence Center, administered by the FBI, was opened in August 1993, Attorney General Reno called it a symbol of the Clinton Administrations effort to eliminate waste and inefficiency in the fragmented $ 13 billion-a-year fight against drugs. Critics however said its mission and activities would overlap with the DEAs EI Paso(NM) Intelligence Center. 39  P. Thomas and S. Barr, ‘White house studies merger of DEA and ATF into the FBI, coordinated attack on criminal enterprises is sought’, The Houston Chronicle, 12 August 1993, No. 12.

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of them have some law enforcement role. That a realignment of the agencies involved in the drug effort should be included in the reinventing, government plans seem therefore a matter of plain common sense. Things are not, however, that simple … Crime nowadays tops the polls as the number one concern of the American public and it has become a vote-winning theme for politicians of all colours. Critics of the Gore plan sug­gest that the reorientation of the federal law enforcement effort deserved a more profound and focused approach. By including it in a list of measures to streamline the bureaucracy in general, the task force underestimated the complexity and the sensitivity of the matter. Seem­ing ‘soft on crime’ has a terrible political cost. Yet the Gore proposal was never presented as a take-it-or-leave-it package. While thor­oughly studying its recommendations, the Department of Justice appears to have given con­siderable thought to all the feasible options and to have listened to all those involved. The FBI, led by its new director Louis Freeh – who took office in the middle of the discussion – endorsed the merger idea. This provoked DEA executives and other opponents of such a re­form into depicting the whole scheme as a ‘hostile take-over bid’.40 FBI supporters on the other hand talked about a friendly offer ‘by a large, technologically advanced, diversified firm with global resources that sought to acquire a much smaller, specialised rival whose mission overlaps, leading to greater efficiency in delivering a sorely needed product’.41 2.2.2. The Creation of a Directorate of Central Law Enforcement The reinventers of government only came with a sketch. Since the Department of Justice re­fused to back the idea, this general outline was never elaborated into a concrete and detailed plan. The merger of the DEA into the FBI would have been the first phase of a broader re­shuffle. It would have been followed by a transfer of the Treasury Department’s law enforce­ment functions into the Department of Justice. The BATF would join the DEA as a division within the FBI. The Customs Service would also see its drug units disappear into the FBI’s Narcotics Division and the remainders would be merged with the a part of the Immigration and Naturalisation Service. Thus a single agency would be responsible for the guarding and administration of the nation’s borders. The federal criminal law enforcement agencies (super-FBI, the new Border Agency, the US Marshall Service, the new INS, …) would be regrouped within of 40  S. Ladd, ‘DEA tells FBI that Drugs ‘R Us’, Newsday, 20 August 1993, No.6, also Rep. Hughes, member of the House Judiciary Committee in: J. Seper, ‘Criticism of FBI-DEA merger grows; House Democrats lead opposition to Gores proposal’, The Washington Times, 30 September 1993, A4. 41  X, ‘Friendly offer; let the FBI acquire the DEA’, Newsday, 23 August 1993, No. 40.



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a Directorate of Central Law Enforcement, modelled on the Central Intelligence Agency.42 The Attorney General would be the director. 2.3. The Main Reasons Why the Plan Ran Aground Notwithstanding the backing of president, vice-president and FBI, all merger scenarios foun­dered on the DEA’s obstinacy. From the outset the Attorney General, who had nevertheless voiced her discontent about the existing situation – and everybody agreed with her that some change was inevitable – reacted rather lukewarmly to the NPR merger plan. Eventually, she opted for a minor reform, that guaranteed the survival of the DEA as a semi-independent agency within the Department of Justice. The transfer of the BATF to the Justice Department was conditional upon the DEA-FBI merger, so it foundered as well. One must therefore conclude that Attorney General Reno – actually the then Deputy Attor­ney General Philip Heymann, who was in charge of the study – has not been deaf to the argu­ments brought forward by the DEA to justify its survival. Some were explicitly mentioned in the discussions, others stayed in the shadow. Some are fundamental questions, others could have been – and still can be – overcome without too much difficulty. From the outset we want to do away with the ‘popular wisdom’ that agencies always want to keep or expand their territory. Some people see it as the only real reason why the reform took so much flak. That is too simplistic an argument. Research has shown that agencies do not always want to expand as much as possible, but that they will accept new responsibilities (and means) if they fall within the tasks of the agency as defined by that agency and if it can increase the agen­cy’s autonomy. We would like to break down the objections brought against the absorption of the DEA into the FBI into three main categories: a historical one, one based on an efficiency perspec­tive, and a political one. Of course it should not be forgotten that technical and efficiency ar­guments are often used to disguise political motives.

42  The Director of Central Intelligence (DCI) is appointed by the president and confirmed by the Senate, acts as the presidents principle advisor on intelligence matters and holds the position of the US governments senior intelligence officer. It is his difficult task to manage the intelligence community, diverse and competitive by nature. It should be pointed out that the CIA is but one of the intelligence agencies, albeit the leading one. The practice has always been to make the DCI concurrently head of the CIA, the only intelligence agency over which he has direct command authority. As with all close presidential advisors, his real influence and effectiveness depend largely upon the working relationship with the president. For an overview of how his office is structured: A. Jordan, W. Taylor and L. Korb, American National Security: Policy and Process (Baltimore 1993) pp. 144–148.

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3. Just Say No!43 The Main Reasons Why the FBI Should Not Absorb the DEA 3.1. The Age of Innocence: The FBI’s Drug Aversion and the Historical Reasons for the Establishment of the DEA 3.1.1. The Pre-history: Narcotics Enforcement before 1973 44 To outsiders it might seem quite odd that the country’s biggest, most respected and most effi­cient law enforcement agency so stubbornly refused to help tackling what many considered the nation’s number one criminal justice problem: the war on drugs. For years the FBI re­sisted Congressional and Justice Department pressure to take the lead in the investigation of drug trafficking. What were the reasons for the Bureau’s cold feet? The first federal narcotics agency, the Federal Bureau of Narcotics (FBN), was created in 1930, within the Treasury Department. This oddity is a consequence of the attitude of Con­gress in shaping America’s Drug Prohibition. As we pointed out in 2.1., criminal law in the US is primarily a matter of state jurisdiction. A century ago, states would have vetoed any substantial expansion of federal criminal law. That is why, from 1890 onwards, Congress re­sorted to increasingly heavy duties on imported opium, through laws which were enforced by Treasury agents and Customs officers. The 1914 Harrison Act, which prohibited over the counter sale of opiates and cocaine, was drafted as a revenue law.45 Its enforcement was left to a narcotics section resorting under different divisions of the Treasury Department. Expan­ding in the 1920s, it was placed under the supervision of the Prohibition Unit. In 1930, when Alcohol Prohibition was moribund, alcohol and illegal narcotics enforcement were separated for the first time and the FBN was created. This DEA predecessor suffered a lot of corruption scandals throughout the following de­cades, especially its New York office. One of its main rivals was the Bureau of Drug Abuse Control (BDAC), part of the Food and Drug Administration (FDA) in the Department of Health, Education and Welfare, and created in 1966 to regulate barbiturates, amphetamines, hallucinogens and counterfeit drugs. Such bureaucratic rivalry was an old sore: in the 1930s the Federal Bureau of Narcotics (FBN) was already quarrelling with Customs. 43  This was the slogan used in Nancy Reagan’s highly publicized drug prevention campaign. It stressed that youngsters are strong enough to resist the social pressures leading to drug use. 44  For a more complete overview: Bureau of Justice Statistics, op. cit., pp. 74–87; M. Lyman, Practical Drug Enforcement. Procedures and Administration (New York 1989) pp. 352–365. 45  Ironically, the Harrison Act was not a prohibition law, but an attempt to ‘medicalize’ drug use in America. It did become a real prohibition law as a result of judicial interpretation (R. Barnett, ‘Bad Trip: Drug Prohibition and the Weakness of Public Policy’, The Yale Law Journal (1994) pp. 2605–2608).



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In 1968, the trouble-ridden FBN was lifted out of the Treasury Department, merged with the BDAC, and relocated in the Justice Department under the name of Bureau of Narcotics and Dangerous Drugs (BNDD). Rivalry continued nevertheless, mostly with the Customs Service, but also with two smaller agencies that had been created ad interim in the Justice Department, the Office of National Narcotics Intelligence (ONNI) and the Office of Drug Abuse Law Enforcement (ODALE).46 The only result the operation had, according to Patricia Rachal, was turning the interdepartmental feuding into a intradepartmental one.47 When the need for a new reshuffle within the Justice Department became obvious, many people evidently thought of the FBI, as they had done in years before.48 But the FBI declined stubbornly, as it had done on previous occasions. 3.1.2. The Government Proposes, Hoover Disposes ‘FBI directors? If you’ve seen one, you’ve seen them all.’ With this witty comment Martha Mitchell, wife of Richard Nixon’s (disgraced) Attorney General, John N. Mitchell, hinted at the longevity of the then FBI-director J. Edgar Hoover.49 Indeed, no director has ever had a stronger grip on an American law enforcement agency than J. Edgar Hoover had on the Federal Bureau of Investigation. As its founder, its figure head and, for 48 years, its almighty chief, in many people’s eyes – including his own – J. Edgar Hoover ‘was’ the FBI.50 The dark side of this unchecked power has been exposed suf­fi ciently by now.51 The FBI 46  Some say that the real reason for the foundation of ODALE and ONNI was to enhance the possibilities of the Nixon White House to conduct covert action within the US (J.A. Inciardi, op. cit., p. 27.) 47  P. Rachal, Federal Narcotics Enforcement: Reorganization and Reform (Boston 1982) p. 55. 48  For instance Sen. Ribicoff, who introduced a bill for the reorganization of federal narcotics enforcement in 1973. Like many people, he wanted all federal activities ‘relating to combatting traffic in illegal drugs’ coordinated by, and accountable to, a single law enforcement agency. At the heart of his proposal was the idea that the narcotics functions would be placed in a newly created Division of Narcotics and dangerous drugs in the FBI. Thus the FBIs experience, laboratories, identification resources and dealings with organized crime would be added to the federal effort aimed at stemming the flow of narcotics into the country. (P. Rachal, op. cit., pp. 63–64.) 49  S. Ungar, The FBI (Boston 1975) p. 264. 50  It is striking that almost as many, if not more, books and studies are aimed at the remarkable director, rather than at the FBI as an institution. 51  See: A. Theoharis, From the Secret Files of J. Edgar Hoover (Chicago 1991) p. 370; A. Theoharis and J. Stuart Cox, The Boss: J. Edgar Hoover and the Great American Inquisition (Philadephia 1982) p. 489; A. Theoharis (ed.), Beyond the Hiss Case: the FBI, Congress, and the Cold War (Philadelphia 1982) p. 423; W. Keller, The Liberals and J. Edgar Hoover: Rise and Fall of a Domestic Intelligence State (Princeton 1989) p. 215; G. Marx, Undercover: Police Surveillance in America (Berkeley 1988) p. 283; J. Elliff, The Reform of FBI Intelligence Operations (Princeton 1979) p. 248; A. Summers, Official and Confidential: the Secret Life of J. Edgar Hoover (New York 1994) p. 610; C. Gentry,]. Edgar Hoover, The Man and His Secrets (New York 1992) p. 610. It would however be a dangerous form of self-deception to attribute all the abuses to the wicked mind of one person. Many people and institutions at every level of the bureaucracy were involved. That is why structural remedies were necessary.

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itself, while anxious to stress the changes it has undergone since those ‘dark ages’, never went as far as to completely pull Hoover from his pedestal. Ronald Kessler attributes the FBI’s institutional lack of objectivity about Hoover in part to his suc­cessors in the director seat and rightfully criticises this amnesia: ‘Writing a 7,600 word his­tory of the FBI [like the one issued by the FBI public affairs office (fv)] without mentioning any abuses is like writing the history of the United States without mentioning slavery.’52 That Hoover stills enjoys so much credit within the Bureau is understandable. Public rela­tions genius and extremely capable organizer, he turned a corrupt branch of the Justice De­partment – started in 1908 and named the FBI in 1935 – into one of America’s most revered and feared agencies. His FBI created a most efficient fingerprints database, a crime lab for forensic investigations, the FBI Academy, it developed the Uniform Crime Reports, and was remarkably successful in a number high-profile cases. A lot can and has been said about J. Edgar Hoover, but there is no doubt about the enor­mous amount of power and influence he had. Only someone of Hoover’s stature and in his strong bargaining position could resist the governmental and Congressional pressure on the FBI to enter the fight against drugs for so long. 3.1.3. Hoover and the FBI’s ‘Sense of Mission’ J. Edgar Hoover had sensed very well how important it was to build a strong image for the FBI. A magnificent propaganda machine was set up under the misleading name ‘crime rec­ords division’. Hoover created for his agents the image of the ‘G-men’, the government’s own supermen, whose exploits were reproduced in comic strips, radio shows, books, news­papers, and later on TV. No criminal ever stayed out of their hands for long. G-men were al­ways traditionally dressed white males, with a perfect haircut, who never made mistakes. Hoover was the archetypal G-man, the true, righteous American.53 This very effective propaganda led, as we said, to abuses, hidden inefficiencies, absurd rules (like the one that agents were not allowed to drink coffee while on duty because the public might get the impression that they were wasting time),54 but also had a beneficial ef­fect for the Bureau that can be felt up to this very day. J. Edgar Hoover gave the Bureau a sense of mission: the key to success for a government bureaucracy.

R. Kessler, op. cit., p. 368. An excellent analysis of this propaganda and its impact: R. Powers, G-Men: Hoover’s F.B.I. in American Popular Culture (Carbondale (IL), 1983) p. 356. 54  J.Q. Wilson, Bureaucracy: What Government Agencies Do and Why They Do It (New York 1989) p. 192; R. Kessler, op. cit., p. 3. 52  53 



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Having learned from the unhappy experiences of the old Bureau of Investigation, which had been buried under criticism for its dubious practices in the days of the Red Scare,55 Hoover would make sure that the FBI would get enough independence from its political su­periors and shield it from criticism, by outsiders as well as by insiders. This was only possible by remaining within a limited scope of jurisdiction, and in matters that were not pol­itically sensitive. As we will illustrate below, this apolitical attitude was rather hypocritical, as Hoover began to set and follow his own agenda. It worked. Like every organization, the FBI has its own organizational personality, its cul­ture. That ‘culture’ is ‘a persistent, patterned way of thinking about the central tasks of and human relationships within the organization. It is passed from one generation to the next. It changes slowly, if at all.’56 The reinventing government idea is aimed precisely at changing the culture of federal government bureaucracy in general. In doing this it underestimated the existence of very different subcultures. This can be the culture of a particular agency, but you might also find very serious cultural differences within one agency. We shall address the cul­tural differences between the FBI and the DEA later. Hoover had the merit of turning his idea of Bureau culture into what social scientists call a sense of ‘mission’, an organizational culture widely shared and endorsed by managers as well by operators, the lower and intermediate level employees performing the actual task of the agency. Why is this sense of mission so important? Because wages and promotion systems in most government organizations are to a great extent independent of the individual’s perfor­mance of the agency’s tasks. The sense of mission is then the best way of motivating person­nel. The agents go the extra mile, not because of the money, but because its their ‘duty’, as people are relying on them. Recruiting of and socialising with new members becomes easier and there is less need for other incentives (punishment, time-sheets, supervision, …) to make the organization and its members work. Some of its particularities make the policeman’s job (and similar activities like those of prison warders or military personnel) very much inductive to this kind of ‘corps mentality’. One of the negative consequences of a strong culture is that tasks that are not part of the culture will not be attended with the same energy and resources. Many American police of­fi cers for example look down on community policing, because instead of the usual ‘catching bad guys’ they have to perform rather less exciting tasks, become a kind of social worker, a ‘softy’. Another one is that corps solidarity is sometimes placed higher than public interest. Investigations of 55  The witch hunt for radicals and dissidents after the First World War, when the government feared a bolshevik revolution in the States. 56  J.Q. Wilson, op. cit., p. 97.

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abuses (like police violence and corruption) often run into a ‘blue wall’. ‘In­ternal affairs’ are not to be revealed to outsiders, a kind of equivalent to mafia ‘omertà’. 3.1.4. Why Stay Away from Drugs? The FBI’s strong sense of mission was built up around the image designed by Hoover. His G-men were clean-cut, straightforward, apolitical investigators who conducted their tasks ‘by the book’. Hoover’s FBI executives therefore steered clear of involvement in matters that might threaten this image of efficient incorruptibility. They viewed narcotics investigation as ‘dirty business’. It required police techniques which they, the ‘college cops’, shunned: con­ducting operations under cover (looking like criminals) and making ‘deals’ with crooks in order to attain the higher levels of the criminal organization. Worst of all: the criminals commanded an unprecedented corruptive power, leveraged by the limited supervision possibilities inherent to the new investigative techniques. The scandals in which the existing narcotics agencies found their agents involved time and again illustrated this sufficiently.57 A few big corruption scandals would be enough to wipe away decades of intensive integrity­image-building. Fear of corruption was probably the number one reason to stay out of narcotics enforce­ment, but there were others. The FBI was more than any other agency used to running busi­ness ‘its way’. It could do so because of its strong bargaining position vis-a-vis Congress and the Executive. In the field of narcotics enforcement it would never have exclusive com­petence and constantly have to interact with Customs, Border Patrol and INS. This co-oper­ation rivalry risked being damaging to the FBI’s autonomy. It meant sharing decision making, credit and blame with other agencies, some of them part of the Treasury Department. And the co-operation with agencies with different cultures might not only weaken the FBI’s sense of mission but would lead to painful managerial problems and territory battles. Unlike catching bankrobbers, car thieves or kidnappers, the war on drugs does not lend itself to clear statistics and the feeling of ‘case closed, congratulations on 57  A telling description of the atmosphere is made by the former head of the DEA’s N.Y. office, Robert Stutman: ‘By the beginning of the 1970s, drug agents were making the headlines not for catching crooks, but for joining them. Disheartening reports were cropping up everywhere. The earliest came out of New York, where by the late 1960s the entire office had been investigated. Then in Boston, US Attorneys began a crackdown to sweep the BNDD office of bad agents who had only recently joined them in the Justice Department. In the years ahead, corruption, coupled with the disastrous disinformation campaign drug control agencies spreading false information to reinforce their argument that drugs were public enemy number one, would be seen as part of a pattern that tainted every good thing we did and every attempt at education. Narcotics enforcement developed a reputation as perhaps the only job worse than dredging corpses from the bottom of a harbor’ (R. Stutman and R. Esposito, Dead on Delivery: Inside the Drug Wars, Straight from the Street (New York 1992) p. 87.



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a job well done’. A drug case is never closed. Every arrest might help to infiltrate further into the criminal network. Just as high body counts did not mean the US was winning the Vietnam war, the number of drug-arrests by no means reflects a decrease in the availability of illegal substances in the country. With the drug problem growing whatever effort the FBI might make – recent history has proven this true – the myth of the Bureau’s efficiency would crumble. Public and politi­cians would question its policy and its executives, for opinions on how to conduct the war on drugs tend to vary widely. Again this very paper is proof that Hoover’s fear was not en­tirely unjustified. Finally we should mention that recent studies, especially that by Anthony Summers, attribute Hoover’s reluctance to attack organized crime (he insisted on denying the existence of a national Syndicate in the face of very strong indications of the contrary) to the ‘betting privileges’ mob figures had given him. Summers also claims that the FBI boss and gay basher was being blackmailed by mafia bosses who possessed most embarrassing pictures of the FBI boss and his assistant Clyde Tolson. There is however no real strong corroboration of this rumour. So, rather than sacrificing integrity, autonomy or credibility, Hoover said ‘No, thank you’ to drugs, and because of his strong position he was permitted to do so. After his death, top­FBI people continued his policy towards drugs. Consequently, another agency would have to dedicate itself to narcotics enforcement. 3.1.5. The Creation of the DEA in 1973 The situation in 1973 was in, certain ways, quite similar to the one twenty years later. Presi­dent Nixon, perhaps out of genuine concern but probably in an effort to divert attention from the disastrous Vietnam War,58 had declared a global war on drugs. The existing organiza­tional structure, as outlined in 3.1.1., was seen as inefficient because of bureaucratic competi­tion, jurisdictional overlap and its fragmented and decentralised approach. Very critical external studies underlining this problem added pressure on the government to act. A new consolidation and a unification of command structures were believed to remedy this. We noted that the two major agencies involved in the drug enforcement effort at the time were the Bureau of Narcotics and Dangerous Drugs in the Justice Department and the US Customs Service in the Treasury Department. The Plan would give the primary Narcotics jurisdiction to a newly created lead agency (Drug Enforcement Administration) within the Justice Department. The BNDD would provide the core of personnel, organizational struc­ture and know-how, but they would be reinforced through the transfer of special agents from Customs and inspectors from the Immigration and Naturalisation Service 58  At the same time, it was a way of smearing war opponents, many of whom were associated with the use of drugs.

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(INS). That hap­pened in the 1973 reorganization, which created the DEA, an agency within the Justice De­partment that would lead the war on drugs without being bothered time and again by the interferences of Customs. Two smaller Narcotics agencies, the Office of Drug Abuse Law Enforcement (ODALE) and the Office of National Narcotics Intelligence (ONNI), were ab­sorbed by the DEA.59 The US Customs Service watched its narcotics officers leave for the DEA, but would be compensated by the transfer of the INS Border Patrol to Customs. When the latter part of the reorganization was dropped, mainly because of union opposition, the Customs Service of course felt cheated and frustrated. It resented the DEA deeply and did everything in its power to sabotage the new agency. The reorganization plan forbade Customs from performing any narcotics-related investigative and intelligence work. But since guarding the border to inter­cept contraband remained one of its tasks, Customs’ executives reactivated the Border Pa­trols division, whose officers could seize drugs between ports of entry. Indirectly, this brought them back into the narcotics business and into competition with the DEA. The DEA was itself a problem child all along. As usual, its birth was not greeted with lots of enthusi­asm by existing agencies. Customs was the most vindictive, but others, like the FBI, were not going to lean backwards to turn the DEA into a success either. One of the other major difficulties was the integration of agents from different back­grounds. The cultural differences between ex-BNDDrs and former Customs agents caused a lot of internal friction (see 3.2.2.). Another problem was that the administrator seat remained unoccupied for a long time, and it is in the chaotic initial years of a new agency’s existence that a strong ‘chief ’ with broad political support is most needed. For he can be decisive in shaping the different strategies and tasks of the merged agencies into a new agency ‘mis­sion’. Throughout the 1970s and early 1980s relations between DEA and Congress were al­ways rather difficult. 3.1.6. The FBI Joins the Drug War: Reinforcement or Hijack? The FBI that became involved in drug enforcement in 1981, had undergone a significant metamorphosis since the death of Hoover. It had been made more accountable, and the Attor­ney General in particular had a stronger grip on it. Under consecutive administrations and FBI directors, organized crime was made a primary target for the ‘new’ bureau. Little by little the FBI dropped its traditional objections to sensitive police techniques like under cover work or the controlled delivery of narcotics or stolen goods. On the other hand, some of the major drug traders went through an strategic and financial evolution that 59 

For an excellent analysis of the creation of the DEA and its consequences: P. Rachal, op. cit.



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brought them in to ‘higher places’. When they stepped up the corruption of high officials, money laundering ac­tivities and investment in legitimate business, they trod on the FBI’s favourite hunting ground: white collar crime and sophisticated racketeering investigations. The DEA has, in recent years, shifted its efforts more and more towards attacking the fin­ancial empires of the druglords. This brings them in to the white collar zone, traditionally FBI-territory, in which the IRS and Customs have been increasingly active too. Unfortunately, the other agencies think that the FBI has an attitude problem. 3.2. Pride and Prejudice: The FBI Culture and the Bureau’s Attitude Towards Other Agencies 3.2.1. Different Strokes for Different Blokes? The rivalry between the DEA and the FBI is legendary. As with all legends, one should not believe too many of them. A part of an agency’s culture building indeed consists of degrad­ing competitors and stressing differences: thus stereotypical images of the rival have been created and cultivated. FBI people believe that the DEA is a bunch of ‘cowboys’ (Drunk Every Afternoon). DEA agents consider the FBI to be ‘bureaucrats, out of touch with what happens on the streets’ (Famous But Incompetent). Stereotypes always contain some truth. Historically both agencies have recruited different people and worked in different ways.60 All FBI agents are college graduates. The Bureau has traditionally had a preference for lawyers and accountants, but other qualities, like language skills (essential for the counteres­pionage and investigation of foreign criminals) or technological knowledge are also en vogue. In a typical case an FBI agent will be notified that a crime has been committed, usually by the victim or a witness. There is little or no doubt that the law has been broken. So the agent looks for a base for federal jurisdiction and opens a case. He starts looking for clues. He searches for forensic evidence, interviews witnesses, confronts them with pictures of possible suspects, goes through tedious lists of phone numbers, licence plates, numbers of banknotes, contacts informants in the criminal world, … As such he not only performs most of his work far from the ‘real’ action, he also has hardly any problem to perform his investi­gation according to the book and the law. Perseverance and patience, more than ingenuity or improvisation, are his biggest qualities. For crimes like theft, fraud, embezzlement or the murder of a federal agent, this procedure poses no problems. 60  Involved as he was in restructuring narcotics enforcement, James Q. Wilson is probably one of the best analysts of the different mentalities of DEA agents and their FBI counterparts. See: J.Q. Wilson, The Investigators: Managing FBI and Narcotics Agents (New York 1978) p. 228. The picture has changed since 1978 though.

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However, the investigation of consensual crimes, like drug sales, prostitution or bribery re­quires different methods. There is no victim in the classical sense and rarely any willing wit­nesses who will bring the crime to the attention of the investigator in his office. The police can try to procure evidence through wiretaps, bugging or searches. Organized drug crime has of course taken preventive measures to protect itself. These investigative techniques imply enormous threats for civil rights, so their use is restricted and impossible without previous leads that could satisfy the probable cause and/or warrant the requirements of the fourth amendment to the US Constitution. They are not used in the hope of making ‘cold hits’ (ac­cidental, coincidental discovery of crime or evidence), but to record evidence that might re­sult from the proactive initiatives of government agents, who ‘push’ the suspect to make a move. The primary way of establishing the existence of consensus crime or the identity of the criminals is by ‘participating’ in it. The simplest cases are those in which a government agent poses as a potential customer and then arrests the suspect who accepts to sell (‘buy-and-bust’). This strategy can only lead to the arrest of the small fry, the street vendors. ‘Narcs’, especially the DEA, have therefore a long tradition of ‘infiltrating’ criminal organizations to get through to senior levels. This tac­tic has lead to some impressive successes but also to a lot of dubious practices and outright disasters. It is a very risky business and both the DEA and the FBI and their supervisors have realised that the cost and dangers of long term infiltration usually outweigh the benefits and have therefore limited their deep under cover operations.61, 62 The 61  There are other reasons that make infiltration more difficult or less necessary. The mob now requires that two mafiosi (in stead of one) have to vouch for a proposed member and thus take responsibility. They have to say they have known the proposed member since childhood or at least for 15 to 20 years. Internal struggle and law enforcement pressure have also led many high-ranking mafia figures to defect and provide the government with information and testimony. (J.D. Pistone, with R. Woodley, op. cit., p. 406.) Joseph Coffey, a top investigator with the New York State Organized Crime Task Force, thinks that another reason for the rash of defections might be that prison conditions are getting less congenial for the Mafia. ‘There was a time when they ran the jails. They were like country clubs. Now the Blacks run the jails, and mobsters are second class citizens.’ (R. Lacayo, ‘Why is “Sammy the Bull” Singing?’, Time Magazine, 16 March 1992, p. 52.) Coffey’s Chief in the NYSOCTF, Ronald Goldstock, points out that if the Mafia is weak, there is a reduced capacity to resolve disputes in a non-violent way. ‘Ironically,’ he adds, ‘violence breeds defection, which weakens the structure and breeds more violence. ‘(R. Behar, ‘A Gang that Still Can’t Shoot Straight’, Time Magazine, 20 January 1992, p. 25.) 62  Gary Marx says that certain assumptions are made as to the efficacy and consequences of undercover work: (1) those arrested are repeat offenders who otherwise would avoid arrest; (2) the kinds of crime targeted will be reduced; and (3) more crime will not be generated. He thinks these assumptions are often questionable. Those arrested are not new to the criminal justice system and it is not clear whether they would not have been arrested by conventional tactics. Undercover operations often result in many arrests and much recovered property. But they do not appear to have a major impact on reducing crime. (G. Marx, op. cit., pp. 118–119).



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typical drug case is there­fore conducted following a buy-and-bust strategy. The dealer who gets busted this way, will be tempted and pressured to give his ‘pals’ up and give the police the names of people higher-up in the organization. Of course the testimony will be used to direct other methods of evidence-gathering, like wiretaps and other kinds of searches and seizures. To make the in­itial bust,63 but also to ‘flip’ informers or sometimes even to analyse the wiretaps, you need agents who are ‘streetwise’. That means being able to act, talk and think like the criminals they are dealing with. That is what the DEA agents say they have and find lacking in the ‘polished’ FBI agents. A drug enforcement organization, federal or local, usually works as a social mirror reflect­ing the environment it is monitoring:64 there is a high concern for trust and security, dealings are based on personal relationships, violence and revenge are dominant themes inter- and intra-organizationally. The clientele can be ‘turned’ to be used by the ‘enemy’, cannot be trusted (yet must be trusted). They are viewed as tricky and deceitful, as are agents of control. Narcotics enforcement is generally a young man’s work, dominated by young men’s style of life and interests on and off the job, with sporadic and episodic, often nocturnal, work de­mands. Partnerships are usually based on similarities of ethnicity, age, sex and background. Because the basic sources of information in a typical FBI case are law-abiding citizens, there is a need for agents to appear trustworthy and conventional. If the principal sources of infor­mation are persons who have broken or are about to break the law, as usually happens in nar­cotics cases, the investigator has to be ‘hip’ and clever (streetwise) or threatening.65 It is not coincidental that the DEA has a higher percentage of blacks and hispanics among its agents. DEA advocates also fear the strangling effects of FBI bureaucracy on volatile drug cases, where improvisation and prompt reaction (availability of funds on a very short notice for in­stance) are essential to the successful outcome of an operation. In the FBI the bureaucratic re­quirements depend on the type of operation. The more dangerous, expensive or sensitive operations need approval from Washington headquarters. Giving too much discretionary powers to local agents could result in miscalculations and scandals which could damage the image of the entire Bureau. Critics may be right in saying that the FBI is somewhat too cen­tralist and should devolve some more decision power to its field offices, but 63  B. Jacobs, ‘Undercover Deception Clues: a Case of Restrictive Deterrence, Criminology (1993) pp. 281–299. 64  An excellent description of the analogues between the dealing-using system and the enforcement system: P. Manning, The Narcs Game. Organizational and Informational Limits on Drug Law Enforcement (Cambridge 1980) p. 69. 65  An exception are the agents who go after drug money. Their cover will typically be that of well-trained ‘mala fide’ financial wizards.

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we think a serious form of control remains necessary. Law enforcement officers handling large sums of money or engaged in controlled delivery operations is a risky business and it should be quite clear who is accountable when something goes wrong. Our personal impression is that the rivalry between the agencies is being fuelled artificially by people fearing for their own jobs. In both agencies there are tensions between operators in field offices and the ‘managers’ at Headquarters. That is something which happens in all large bureaucracies. As we will see, the differences between the agencies are fading. The biggest resentment to the merger came from the DEA’s ‘suits’, the managers. Their position at this moment is such that they could sabotage the whole merger. Therefore it might be wiser to win them over little by little. 3.2.2. The Ghost of Mergers Past The DEA, in 1973 and the following years, had its own painful experience of integrating two different bureaucratic cultures. The agents who came from the BNDD (75%) saw their task as using their buy-and-bust strategy to arrest as many criminals as possible. The Customs drug agents who had joined the DEA on the other hand, had always preferred the so-called ‘convoy-method’. That tactic consisted of letting traffickers and their drugs pass the border checkpoints and then keeping them under surveillance, to make the seizure and arrest at the highest possible level of the criminal organization. The unique search and seizure powers en­titled Customs officers to get more ‘cold hits’ (i.e., not resulting from a tip) on the border. Un­like the BNDD, they lacked the funds to ‘buy’ a lot of drugs and declined to go after suppliers abroad. The brand-new DEA however copied the strategy, organization and tactics of the BNDD, ignoring the Customs’ way of running things.66 Frustration over the DEA’s ‘unsophisticated’ methods was, together with the discrimination in the distribution of high-level jobs, the main reason why many of the former Customs officers in the DEA resigned or returned to Cus­toms. The 1993 version of the DEA agent, who, to be sure, is familiar with ‘controlled de­livery’,67 fears that his destiny after absorption of his agency into the FBI would be similar of that of the former Customs officers in 1973. The assertiveness of FBI people sometimes irritates their colleagues elsewhere. Many law enforcement agents in smaller agencies tend to have problems with the FBI’s pride, which they perceive as arrogance. ‘The FBI was not satisfied P. Rachal, op. cit., p. 132. And Customs officers are familiar with undercover operations. Operation C-Chase, in which a Customs agent posed as a money launderer for Columbian druglords, was crucial in the case against the BCCI. 66  67 



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with a supplemental role,’ they com­plain, ‘The FBI likes to be in charge.’68 The FBI’s traditional reluctance to share intelligence is seen as proof of this attitude. These are problems that should not be underestimated. We al­ready stressed how important the ‘culture’ is for a law enforcement agency. In James Q. Wil­son’s words: ‘changing the culture of an agency is like moving a cemetery: it is always difficult, some people think it is sacrilegious’.69 Many specialists argue that, at the moment at least, the cultural incompatibility between DEA and FBI agents is such that it would be un­wise to merge the agencies as yet.70 3.3. The Political Argument: Fear of Too Much FBI Power 3.3.1. The American Fear of a National Police Agency 3.3.1.1. The Land of the Free America is a vast country with 250 million inhabitants of varied backgrounds. Americans like to think that the glue that keeps their society together is a shared ideal of freedom. By ‘freedom’ Americans understand ‘a situation of rights, of loose ties, of light command, of strained authority; an attenua­tion of what is, after all, the more common human condition, historically speaking: tight societies, trying to control the thoughts and actions of their subjects’.71 This conception of freedom lies at the heart of the American attitude towards government and authority. The traditional European interpretation of Montesquieu’s separation of powers doctrine aims at restraining the government by strictly limiting the jurisdiction of each of its three branches (legislative, executive and judiciary) and keep them from encroaching on each other’s jurisdiction. The American government on the contrary is kept under control by a sys­tem of checks and balances, with the different elements of government often competing with each other. In a similar way, the notion of dual sovereignty for state and union leads to competition and conflict. That the government as a consequence might be hampered in its policy making is not deplored too much. Free enterprise

68  Dixit Jack Lawn, a former FBI agent himself, who presided the DEA from 1985 to 1990. (T. Everbach, ‘DEA fights for survival as FBI backs agencies merger’, The Dallas Morning News, 11 September 1993, 34A.) The same Lawn would later talk about the numerous problems that developed as a result of the so-called ‘point of authority’ proposal tried during the Reagan administration and that had failed. On policy matters, the DEA had to report to the Attorney General through the FBI. He said the FBI often felt it was ‘demeaning to have to explain its actions to the DEA. (J. Seper, ‘R.I.P. for the DEA?’, The Washington Times, 12 October 1993, A8.) 69  J.Q. Wilson, Bureaucracy, p. 368. 70  Among others E. Delattre, dean of the School of Education at Boston University, who helps training both FBI and DEA agents. (G. Krupa, ‘Reservations greet White House plan to merge FBI-DEA’, The Boston Globe, 13 September 1993, p. 12.) 71  L. Friedman, op. cit., pp. 12–13.

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and the spirit of competition, rather than government protagonism, are seen as the basis of the country’s success. Of all the different players on the political battlefield the one distrusted the most, is the federal executive, because the essence of a presidential regime like the American one is a strong executive with only limited control by Congress. If a state government were to unduly infringe on the freedom of its citizens, this could be remedied by resorting to the federation or by moving out of the state and thus acquiring citizenship in another state. No such check exists on the federal government. That is why Americans have always rejected the notion of a national police force, like the ones modelled on the French Gendarmerie. They fear it would too easily become an instrument of oppression for the federal government. Living in a police state is traditionally one of the American’s worst nightmares.72 The shift in the balance of power in favour of the federation throughout the twentieth century is a logical historical evol­ution. But the history of federal policing is such as to warrant strong checks on its power. 3.3.1.2. The Troubling History of the FBI’s Domestic Intelligence Operations The libertarians and the defenders of states’ rights held their ground until the early 20th Cen­tury, but in July 1908 Attorney General Charles Bonaparte73 created the Bureau of Investiga­tion as a permanent investigation division within the Department of Justice,74 despite a previous Congressional ‘njet’. When in 1907 and 1908 Secret Service agents (temporarily hired by the Justice Department) uncovered evidence of land fraud involving two Congress­men, Congress felt ‘targeted’. Its members compared the operation with those of a tsarist se­cret police and voiced fears of a ‘national secret police’ and its threats to a government of checks and balances.75 Bonaparte assured Congress that the Bureau would be confined to enforcing the antitrust and interstate commerce laws and that it would not monitor political dissent or target members of Congress at the request of their partisan adversaries in the White House. Congress nevertheless denied Bonaparte’s request for a permanent investigative agency within the De­partment of Justice. It even passed a law (on 30 May 1908), that specifically prohibited the Department of

72  Many people live in the US because they or their ancestors had to flee from oppression. A paranoid version of the attitude can be seen in the ‘militias that have recently attracted a lot of attention. 73  Indeed, the grand nephew of the Emperor. 74  This was (interestingly for Europe) part of President Roosevelt’s ‘trust-busting’ and his war with the ‘malefactors of great wealth’ and their proxies in Congress. He needed an investigative agency to gather evidence of industrial combines and graft. 75  A. Theoharis, From the secret files of J. Edgar Hoover, p. 1.



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Justice from borrowing investigative agents from other federal organizations. Thirty days after Congress adjourned, Bonaparte went ahead with his Bureau … Initially it did limit itself to small investigations,76 but the passing of the White Slavery Act in 191077 was the first step to giving it an important national role. The concerns of Con­gress in 1907–1908 turned out to be well founded. During World War I the Bureau compiled over 200,000 files on American organizations and residents who opposed Woodrow Wilson’s foreign policy and it continued to spy on radical trade unionists and socialists after the War. The information was passed on to interested state police agents and employers. In 1923 disclosure of the monitoring by the Bureau of Congressional critics who had ex­posed the Teapot Dome scandal78 seriously damaged the agency’s image. The monitoring in­cluded breaking into and wiretapping the offices of Congressmen. The Attorney General in the new Coolidge administration, Harlan Fiske Stowe, was told to find a new director for the Bureau and appointed the young J. Edgar Hoover. The new director publicly affirmed his in­tent to limit the Bureau’s activities to federal statutory violations. He knew that any scandal would cost his neck and might mean the end for the Bureau. The best way of achieving this would have been by respecting the ban on surveillance of personal and political activities. Instead, Hoover required his own written approval for it, so that the illegal surveillance would only be conducted if he was confident it would not be discovered. He kept the results in secret files for his personal use. In August 1936 president Franklin Roosevelt verbally authorized Hoover to investigate ‘communist and fascist’ activities. Nevertheless the FBI ­boss kept using his ‘personal and confidential’ files for all ‘matters of a highly confidential nature which are deemed [by the SAC (fv)] of sufficient importance to be brought to the Di­rector’s personal attention.’79 In this manner Hoover built up files containing information on non-criminal activities (like homosexuality or ‘obscene’ activities) and sensitive records that were the result of illegal investigations (break-ins, warrantless wiretaps or bugs). As we men­tioned earlier he used

Antitrust prosecutions, bankruptcy and fraud cases, crimes committed on government reservations and interstate commerce violations; (J. Inciardi, op. cit., p. 178.) 77  Under this so-called Mann-Act (after its sponsor in Congress, James Robert Mann) it was forbidden to transport women for immoral purposes in interstate or foreign commerce; to assist in procuring transport for immoral purposes or to persuade or induce any female to cross state lines for such purposes. It was the beginning of the use of the commerce close for the expansion of federal criminal law. See 3.1.2. 78  Congress had started a number of investigations concerning members of the administration. The secretary of the Interior was found to have accepted a bribe and leased naval oil reserves at Teapot Dome (Wy). to a private oil company. Among the other ‘affaires’, there was the bribing of the Attorney General to block prosecutions for Prohibition violations. The Bureau had not performed its watchdog function: incompetence or corruption? Its image was seriously damaged. 79  A. Theoharis, From the Secret Files of J. Edgar Hoover, p. 4. 76 

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these files to serve the political interests of the White House and above all to advance his own bureaucratic, political and moralistic agenda. We will not go into the abuses of the Hoover-era any further, but it is essential to realize how much damage the discovery of the perversities of the FBI’s domestic intelligence has done to public confidence in the government. Together with Watergate, they have led to a profound distrust of government, which is like a deep scar on Uncle Sam’s face. In such a situation the spectre of a national police at the behest of that government is seen as particu­larly threatening. The FBI likes to stress that the Hoover days are long over and that numerous mechanisms guarantee that they will not come back.80 It has polished its image and dedicated itself to becoming a high-tech investigative agency, with a lot of money and energy invested in forensics, sophisticated electronic bugging devices, profiling, etc. In re­cent years, it has successfully resolved a number of high profile cases. It managed to put Gambino boss John Gotti behind bars.81 It found the probable bombers of the World Trade Centre82 and of Pan Am flight 103 which exploded over Lockerbie.83 It thwarted conspir­acies to blow up other New York City landmarks like the Holland tunnel and UN Headquar­ters,84 but it has not been able to avoid all controversy.85, 86 In March 1976 Attorney General Edward Levi had issued new guidelines governing FBI ‘domestic security’ investigations, but his successors in the Reagan administration did not share his views on the 80  See J. Eliff, op. cit.; and T. Poveda, The FBI in Transition, Lawlessness and Reform (Pacific Grove, CA, 1990), p. 202. Legislation now limits the tenure of FBI Directors to ten years. Often the Director will come from outside the FBI (although (s)he can be a former agent, like the current Director, Louis Freeh). In general, outsiders (prosecutors, civil servants, university professors) interact intensively with Bureau people, in the hope that will keep the FBI from isolating itself too much from ‘civil society. A board of civilians supervises the intelligence community. 1974 amendments to the Freedom of Information Act promoted public release of FBI records. The Office of Professional Responsibility (OPR) exercises supervision within the DOJ. The Attorney General issued Guidelines to regulate sensitive FBI activities, like intelligence gathering or undercover operations. Statutes regulate the use of wiretaps and bugs. Post-Watergate Congressional and public attitude towards presidency and intelligence agencies also makes a repetition of the Hoover abuses less evident. 81  Gotti was nicknamed the Teflon don, because of his acquittals in three previous trials. After the FBI succeeded in recording his meetings and flipping his lieutenant Sammy ‘the Bull’ Gravano, Gotti was finally convicted in 1992. See: H. Bluhm, Gangland (New York 1993); The Gotti Tapes (Including the Testimony of Salvatore (Sammy the Bull) Gravano (New York 1992); J. Jacobs, C. Panarella and J. Worthington, Busting the Mob: US v. Cosa Nostra (New York 1994) pp. 211–240. 82  R. Kessler, op. cit., pp. 23–26. 83  R. Kessler, op. cit., pp. 358–361; also on the Lockerbie bombing: S. Emerson and B. Duffy, The Fall of Pan Am 103: Inside the Lockerbie Investigation (New York 1990) p. 304. 84  G. Church, ‘The Terror within’, Time, 5 July 1993, p. 18. 85  In one of the most sensitive operations, ABSCAM, the FBI under cover as arab businessmen, offered bribes to Congressmen and high-ranking state officials. R. Blecker, ‘Beyond 1984, Undercover in America – Serpico to Abscam, New York Law School Law Review (1984) p. 872. 86  In the case of the UN bombing plot, the FBI used a controversial informant: M. Liu, and R. Spiremin, ‘The Mysterious Informant, FBI: when does a sting become a scam?’, Newsweek, 19 August 1993, p. 28.



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FBI’s domestic intelligence role, and in the eighties the control on the FBI was reduced to such an extent as to warrant some concern. 3.3.1.3. Big Brother? Does this fear of a Big Brother justify the continuation of the current overlaps and competi­tion in federal law enforcement? Although the fear of a national police force was used time and time again by all opponents, the person who articulated them before a US Congressional subcommittee was former prosecutor Myles H. Malman: By and through this overly simplistic, naive, and fiscally motivated merger plan, la­belled as a reform by our vice-president, the administration is apparently and unwit­tingly on the brink of tinkering with our basic civil liberties and nudging society towards a new and unprecedented governmental control of its citizenry. This would be accomplished through the creation of one centralized federal law enforcement organiza­tion. Ironically, it is the maintaining of this type of total control and accompanying data base which is always found in totalitarian societies, and hopefully never in democratic ones.87

He said that after the Hoover days and the Watergate/John Mitchell era the nation should have learned the lessons from the dangers that result from the exercise of unbridled cen­tralized federal police power. A Directorate of Central Law Enforcement could, in his eyes, not be more Orwellian. We acknowledge that such warnings are full of merit. We doubt nevertheless that drug en­forcement reform would be the biggest threat to civil rights. Like Malman we have stressed that the nation should learn its lessons from what happened in the past, although we do not think this warrants the existence of the DEA as a separate agency. We pointed out that in the period of most abuses, the FBI precisely refused to get involved in drug enforcement. This allowed it to stay an autonomous, rather secluded and secretive agency in which the abuses could go on for decades. The existence of separate drug enforcement agencies has not signifi­cantly contributed to the prevention or remedying of the FBIoutrages, and the DEA is al­ready a semi-autonomous agency of the Executive and therefore liable to be (ab)used by the Executive too.88

87  H. Grezlak, ‘DEA,FBI Merger opposed by Ex-prosecutor; Philadelphia Attorney Testifies to Congressional Subcommittee’, The Legal Intelligencer, 6 October 1993, p. 3. 88  The journalist Jay Epstein developed a conspiracy theory to explain the 1973 reorganization, which he saw as a step towards a kind of presidential ‘coup detat’. The new drug agency would be a secret, unconventional, national police force at the presidents disposal. With the drug war as justification, it would operate without the fear of restraint or reprisals from other branches of the federal government. The drug problem would have been an artificial creation of the Nixon administration to serve this evil purposes. (J. Epstein, Agency of Fear (New York 1977). This scenario is convincingly rejected by P. Rachal, op. cit., pp. 67–70.

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What we see as the main problem is that the FBI is a criminal law enforcement agency and an intelligence agency at the same time. In the FBI’s case, this is basically the result of his­torical events in the Hoover days. The traditional attitude of most democracies is to give typi­cal police tasks and counter-intelligence functions to different agencies. The tasks and solutions of (counter)intelligence agencies are not basically repressive. Things have changed to a certain extent since the intelligence community was ordered to deal with terrorists. Espe­cially after the Cold War the redefining of the mission of Intelligence agencies has brought some of them to join the hunt for organized crime. We already indicated that an evolution in the law enforcement approach of organized crime has taken place: a more proactive policing effort makes strong intelligence capabilities crucial. The Nixon, Reagan and Bush administrations did not make a very wise move by declaring that drugs are a national security issue which should be dealt with by all means, including military ones.89 With the military on the job, civil rights really might be under siege. Malman’s warning about the dangers of concentrated power should be a primary concern for everyone who is responsible for the organization of police forces. Technology has created the potential government intrusion to an extent Hoover could only have dreamt of. We do not think however that a reorganization of federal law enforcement would as such create an un­controllable monster. It is unwise to rely on inefficiency and bureaucratic rivalry for the pro­tection of civil rights. On the contrary, we are afraid the bureaucratic rivalry might even be fought out at the expense of civil rights. As a guarantee for FBI accountability, we would rather rely on external control by Congress, the Judiciary and the Fourth Power, a free press. Instead of resisting an integration of federal law enforcement the way Malman does, it would be preferable to separate the FBI’s political and criminal intelligence branches. The criminal branch would be under the Director of Central Law Enforcement, the newly born domestic counter-intelligence agency under the Director of Central Intelligence. This does not mean that all ties would have to be cut. The Bureau’s experience with foreign intelligence agents can be a great help in dealing with international crime. We already pointed out that law enforcement and counter-intelligence have a number of common enemies. 89  The military has helped in the drug effort since 1971. But the Posse Comitatus of 1876 prohibited the military from exercising police powers on the US civilian population. (Hence the ad hoc establishments of civilian ‘posses’ to go after fugitives). Changes to the Act in 1980s gave the military responsibility for detection and monitoring of the aerial and maritime transit of illegal drugs into the US and allowed the military to share resources with civilian law enforcement, although it is still forbidden to make arrests. The reserve troops of the National Guard, at the disposal of the State Governors, have been used in drug control since 1977. Since 1983 they also help the federation, especially with marihuana eradication and border surveillance. (Bureau of Justice Statistics, op. cit., p. 143; N. Wiley, op. cit.)



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The rotation of FBI agents between criminal and intelligence functions also has advantages as a vaccine against too much alienation from civil society. Such a break-up of the FBI as we know it will be even more difficult than the reform proposed now. Critics say it is always easier to offer more to the FBI than taking away some of its territory. 3.3.2. Cooperation with Foreign and Local Law Enforcement: Better the DE(A)vil You Know? 3.3.2.1. Abroad90 The DEA dedicates a lot of its energy and agents to the fight against drugs outside the US. It has agents in 70 offices in 50 different countries all over the world, but especially in drug producing countries like Colombia, Peru, Bolivia or Thailand. They work in a way for a sort of American (state-owned) multinational enterprise. Their activities vary according to the part of the world they are working in. Abroad they lack the sovereign police powers they have at home, which means that they operate like private investigators. In order to have any substantial success, they have to collaborate closely with local law en­forcement. The way in which this happens varies. In Europe governments are willing to co­operate closely with DEA agents but very reluctant to give them a free hand (cf infra). Other countries shun close co-operation with the Americans, so the DEA is going more its own way.91 Sometimes the DEA will use the rivalry between different police forces and only work with them, for instance to get around police corruption in the other forces. The FBI’s presence abroad has traditionally been less impressive. The Bureau’s Legats (Legal Attachés) were limited both in numbers and in the operations they performed. Nadelmann describes how in the last years the FBI’s activities abroad have increased seriously.92 Nevertheless, in 1990 it still had only 40 Legats in 16 countries. 90  See: E. Nadelman, Cops across Borders: The Internationalization of US Criminal Law Enforcement (University Park, PA, 1993) p. 524. 91  E. Nadelman, op. cit., 1999. (Finding and Creating Foreign Partners). 92  There are different reasons for the FBI to overcome its traditional reluctance to send case agents on foreign missions. The first one is that in 1982 it was given jurisdiction over drug cases involving organized crime. This only changed the DEAs activities in Italy, Canada and – to a lesser extent – Switzerland because drug traffIcking investigations in those countries have a connection with traditional organized crime in the US. It was agreed that the FBI would retain its own lead in domestically initiated drug cases (E. Nadelman, op. cit., 156.) Another reason was that Congress responded to terrorist incidents and politically motivated murders by enacting legislation broadening extraterritorial jurisdiction. (Comprehensive Crime Control Act of 1984, including a new law 18 U.S.c. 1203 implementing the International Convention Against the Taking of Hostages and the Omnibus Diplomatic Security and Antiterrorism Act of 1986, 18 U.S.C. 2331; see also: D. Martell, ‘FBI’s expanding role in International Terrorism Investigations’, FBI Law Enforcement Bulletin 56 (October 87), pp. 28–32. In 1987 the Bureau created an Office of Liaison and International Affairs

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The DEA uses these good relations with foreign law enforcement as another card to trump the FBI bid. One can side-step the question as to whether the DEA’s good relations abroad really have had a significant impact in the flow of illegal drugs into the US and what cost foreign judicial systems bear in the war on drugs. Even then, one has to wonder whether rela­tions would tum completely sour if the very same people were part of the FBI Narcotics Di­vision. Hoover’s public relations policy had an impact across the borders and the FBI is admired by police people all over the world. Indeed, says the DEA, it is largely because it is the DEA’s sole mission to stop drug traf­fi cking that many foreign governments allow American agents on their soil. If the FBI, espe­cially distrusted because of its intelligence-gathering functions, were to take over, the American agents might be banned. An example is Chile, that in August 1993 raised objec­tions to the stationing of FBI agents in the American Embassy in Santiago, where the DEA already maintained an office.93 There could be some truth in this argument. It is nevertheless rebutted by Oliver ‘Buck’ Revell, an ‘eminence grise’ within the Bureau who retired only recently. He thinks it is highly unlikely that FBI presence would intimidate foreign governments more. The FBI is not involved in foreign espionage.94 We think that foreign governments are wise enough to understand that they should focus on the CIA if they fear espionage and on the INS for immigration matters. An agreement that limits the FBI agents abroad to drug enforcement matters is not impossible either. You do not even have to believe Revell when he says he has ‘personally received a number of assur­ances from foreign entities that they would rather deal with the FBI than with the DEA.’ If the FBI retains its role as a political intelligence agency and expands its activities overseas, not only the danger of concentrating unchecked power but also the risk of ‘war’ with the CIA might increase tremendously. The FBI and the CIA have a long history of territory battles. The CIA has traditionally been one of the toughest opponents when the DEA engaged in overseas actions. Both agencies had different priorities and the CIA did not want the DEA going after political allies of the US even if there were clear indications of their involvement in drug trafficking. That was the case for the Afghan rebels, influential exponents of Pakistan politics, Panama’s Noriega, the Nicaraguan Contra’s or the Honduran military. If the FBI were to take over, the resulting clash of titans could be disastrous for American foreign pol­icy. In any event, it would force the government to set out its priorities more (OLIA) to supervise the increasing international activities. Top FBI people attend, with observer status, the periodical TREVI meetings. An increasing number of foreign law enforcement agents visits the Hoover Building or receive training at the FBI Academy in Quantico. Any personal relations that develop there are the basis for an ‘old boys network’. 93  G. Krupa, op. cit., p. 12. 94  T. Everbach, op. cit., p. 34A.



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clearly.95 Since the end of the Cold War, the FBI probably have a stronger case against CIA efforts to protect international criminals for political reasons. 3.3.2.2. At Home A parallel discussion is taking place with regard to the co-operation with local law enforce­ment in the US Local police are of course the ground troops in the war against drugs. For more serious cases they get help from the ‘special forces’ of the DEA and the FBI. The DEA boasts that its relations with local law enforcement are a lot better, not only because of the FBI’s alleged ‘arrogance’, but also because the FBI is responsible for police corruption in­vestigations.96 This makes local police very suspicious and reluctant to work with the FBI. There are indications that this is true, but here as well things might be changing. A lot de­pends on the attitude of the FBI.97 The experience of interagency task forces has shown that success depends heavily on the personal attitude and relations of the people involved. The younger generation of FBI agents seems to be more pragmatic and respectful towards DEA and (certain members of the) local police.

4. Chronicle of a Merger Foretold? 4.1. The FBI Director as an Interagency Arbitrator The Department of Justice did not go along with Al Gore’s proposal for a drastic reform of law enforcement. The DEA succeeded in resisting the FBI’s take-over bid, although a subtle change in the balance took place nevertheless. Instead of a Director of Central Law Enforce­ment, a Director of Investigative Policies was appointed. His task: ‘to resolve operational issues where there is overlapping jurisdiction among law enforcement agencies of the De­partment of Justice. This would include such matters as drug trafficking, violence and ap­prehension of fugitives’.98 The CIA has been ordered to join the drug war and has created a narcotics unit. (M. Isicoff, ‘CIA creates narcotics unit to help in drug fight’, The Washington Post, 28 May 1989, pp. AI2-AI3.) It is said to have contributed to the recent successes in the fight against the Cali cartel. 96  C. Ruff, ‘Federal Prosecution of Local Corruption: A Case Study in the Making of Law Enforcing Policy’, Georgetown Law Journal, No. 65, pp. 1171–1228. 97  William A. Gavin is the SAC of the FBI’s Miami Field Office, the only one to have a squad devoted to nothing but police corruption. He does not want the FBI to act as a prima donna: ‘The way we manage is by being partners with the [police] department if that is doable. It doesn’t serve us well, I think, unless the corruption is pervasive from top to bottom, to go into a department and do a police corruption case without the department’s knowledge. I don’t like to do that.’ (R. Kessler, op. cit. p. 93). 98  C. Skomeck, ‘Reno Keeps Drug Agency From FBI, Rejects Gore Proposal’, The Legal Intelligencer, 22 October 1993, p. 1. 95 

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The agencies of the Treasury (BATF, Customs, IRS) thus kept out of harm’s way, and the four DOJ agencies (FBI, DEA, INS and Marshal Service) retained their current responsi­bilities. None of the three others would report to Justice through the FBI. For the new func­tion Attorney General Reno chose … Louis Freeh, Director of the Federal Bureau of Investigation.99 Rep. Charles Schumer (D. – N. Y.), chairman of the House Judiciary crime subcommittee criticised this decision. According to him ‘the conflicts between the DEA and the FBI have been long-standing, intense and very public.’ That is why he strongly suggests that ‘this history requires the appointment of a person whose decisions will be beyond even the slightest appearance of partiality.’ Reno stood by Freeh however: she thought ‘he can very easily resolve disputes’. It is not really clear yet how the mechanism will function in practice. We think that the diplomatic skills Freeh has demonstrated on previous occasions, might indeed make this appointment indeed a contribution to a better relationship between the dif­ferent agencies. Integration is a process and this small reform might be a step forward.100 4.2. Beyond Good and Evil: The Increasing Co-operation between the DEA and the FBI We already mentioned that some episodes in the FBI-DEA rivalry are legendary, and in the course of this paper we stressed some of the differences between the two agencies. In spite of this, there are indications that, on the ground, some progress is being made. To a certain extent this is a consequence of the many efforts of the government to bring about some understanding between the rivals. Especially from the 1960s onwards, America became aware that organized crime was on the increase and that it could not be tackled with tradi­tional law enforcement 99  Remember that the idea was to make the Attorney General Director of Central Law Enforcement. One notes that there is some similarity with the intelligence community, where the DCI is at the same time the head of the leading agency, the CIA, Cf supra. 100  The appointment of FBI-people to top positions in other agencies has not always brought the desired results. A typical case of miscalculation was that of Jack Lawn, who left the Bureau to become DEA administrator. He turned out to be a die-hard defender of the DEA’s autonomy which sabotaged any merger attempts. An attitude not appreciated by his former colleagues. ‘Jack went over to facilitate the consolidation, and he got an extreme case of egotism,’ Buck Revell said, commenting on a previous aborted merger proposal, ‘Jack had worked for me. I recommended him as SAC in San Antonio. I did not anticipate that his ego and personal ambitions would take over. He did not sell it to the DEA. It would have enhanced their opportunities. Would you rather be an FBI or a DEA agent? Their concern was they would be shunted aside in the bureau. But that wasn’t the case at all.’ (R. Kessler, op. cit., p. 97.) As a successor to Robert Bonner as head of the DEA, again an FBI-man was chosen. It is improbable that he too will sabotage efforts to bring the agencies closer to each other. (S. Howard, ‘FBI Deputy Reportedly Front-Runnner for DEA Post’, The Arizona Republic, 30 September 1993, p. A11.)



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strategies. The report of the Katzenbach Commission, which had been installed by President Johnson to investigate the problems of crime and law enforce­ ment, concluded that a shift from classical, reactive law enforcement to more proactive polic­ing became necessary. The key to the result was the availability of tactical and strategic101 intelligence concerning the criminal enterprises and their members. The result has been that law enforcement have invested a lot of resources in intelligence gathering (often through proactive operations) and analysis. One could say that DEA, FBI, ATF and Customs differ less than they used to: they all begin to look more and more like the CIA … Other evolutions have also diminished the difference between the agencies to a certain ex­tent. In 1965 Congress had passed the Law Enforcement Assistance Act (LEAA), which gave the Attorney General the possibility of granting financial aid to local law enforcement. After another ‘law and order’ election campaign in 1968, the Omnibus Crime Control and Safe Streets Act was adopted.102 The result of this was Law Enforcement Assistance Administra­tion: a federal bureaucracy created to involve the national government in local crime control by supplying funds to the states for training and upgrading criminal justice agencies. Ten years and billions of dollars later, the programme faded out of the picture. Generally, it was deemed a failure.103 Though the money might not always have been spent in the most efficient way, and though criticism that it overemphasised the ‘technological’ war on crime might be justified, the programme had its merits too. One of them was that some $40 million per year were spent on the education and professionalization of people working in the criminal justice sys­tem.104 Another significant moment was when the FBI was ordered to enter the drug war in the early 1980s. The idea was that the Bureau should focus on complicated conspiracy operations. Most of the time, the FBI could stick to its old-fashioned tactics, or a technically upgraded version of them, but sometimes it used real ‘DEA-style’ undercover agents. In doing so they got more respect for and from DEA agents. More and more the DEA agents, whose lack of professionalism and discipline was often trying for their supervisors and subjected them to harsh FBI criticism, attended the FBI­ academy. They began to respect the FBI’s ways of going ‘by the book’, realising that a great bust might get thrown out of court if procedural errors are made. 101  Tactical intelligence is obtained for specific organized crime prosecutions, strategic intelligence concerns the capabilities, intentions, and vulnerabilities of criminal and terrorist organizations. 102  This Act is best known as the federal wiretapping statute. 103  J.A. Inciardi, op. cit., p. 25. 104  The Twentieth Century FlllId which evaluated the LEAA, considered this education progrartune as one of the progrartune’s most constructive and successful efforts. (J.A. Inciardi, op. cit., p. 25).

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Recognising that co-ordination is the key to more efficient drug control, a number of mechanisms have been set up to eliminate overlap and undue competition. At the federal level they include the Law Enforcement Co-ordinating Committees,105 the DEA State and local task forces106 and most importantly the Organized Crime Drug Enforcement Task Forces. Created by Presidential initiative in 1984, the OCDETFs target major international and national drug trafficking organizations. A selected number of US Attorneys offices ad­minister them. They are an excellent platform for people of different agencies to work together. Most of them had rather disappointing results, but it appears that the success is completely dependent upon the attitude of the people dispatched to these task forces. Some­times agencies might send the wrong people exactly because they precisely want to prove that they are different or because they do not want to share blame or success with others. Instead of always imposing itself, the FBI now more and more waits to be invited. Of course, it has a number of assets to make sure it will not be a wallflower for too long. Other agencies, local, state and federal will be glad to make use of the FBI’s enormous re­sources.107 The Bureau will have to ‘share its toys’ more than it did in the past, but the benefits of the co-operation might be worth the investment. 4.3. Drug War: What is it Good For? The War on Drugs increasingly resembles that other unwinnable war, the one in Vietnam. The world’s biggest nation got sucked into it little by little. Thousands of the nation’s young­sters were maimed or killed, a disproportionate number of them from poor minority back­grounds. The drug problem in the US is too complicated to be addressed with the simplistic good/bad rhetoric so typical in warfare. Only recently, the taboo that rested on the legaliza­tion has disappeared. Many people above suspicion, judges and drug enforcers, claim that prohibition only increases the drug problem. We do not know exactly what the alternative to prohibition will look like, but we believe that in the long run, the hard-line approach will prove too costly and

105  The US Attorneys use them to co-ordinate all situations involving dual jurisdiction. All relevant federal and local agencies will be represented in them. 106  The DEA task forces use a multijurisdictional approach to confront drug traffic that crosses municipal, county and state boundaries. 107  In recent years, more and more officers and prosecutors have been cross-designed between different levels of government and between different agencies. This allows them to broaden their jurisdiction. E. g. state and local officers participating in DEA state and local task forces have, as task force investigators, the authority to enforce Federal Drug laws like DEA agents. If Buck Revell’s suggestion that every cop wants to be an FBI agent is true, there might be some perspective in this procedure.



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will have to be aban­doned. We refer to Duke and Gross as an excellent analysis of the costs of prohibition.108 Boston Law School’s professor Randy Barnett compares popular support for drug prohibi­tion with support for George Bush immediately after Operation Desert Storm: very broad and very thin. Drugs are the big exception to the general trend of recent decades, a decreasing re­pressiveness in laws sanctioning victimless ‘immoral’ behaviour (like certain forms of sexual conduct, prostitution, gambling, alcohol, blasphemy). The choice between prohibiting and legalizing drugs is probably the single most difficult issue of criminal justice policy in the second half of the twentieth century. Legalization will by no means solve the drug problem, but it may be a way for governments to stabilise and control the market, to reduce crime and health risks.109 There is an overall impression that, whatever law enforcement does, the flow of illegal drugs keeps growing. Instead of pressu­ring the rest of the world to adopt the failing American – of course not exclusively American – policy, it might not be a bad idea to look at some experiments going on in Europe. At least the taboo on legalization should be lifted. Will the role for federal drug enforcers be over then? A lot of criminal enterprises now branded as drug gangs, drug mafia or drug money laundering will still be there. They might be involved in contraband-drugs or dozens of other forms of crime. In combating them, the resources, skills and dedication of the people now involved in drug law enforcement, will be of a vital importance. We realize that the drug war cannot be stopped overnight. Still, focusing the crime control effort a little less on drugs or, better, the drug control effort a little less on crime, would not be a bad idea. The integration of the DEA into the FBI might entail a temporary slowdown in drug law enforcement. It would amount to a cease-fire, not a surrender, and would give everybody the time to assess the damage and to concentrate on the helping the numerous vic­tims.

See S. Duke and A. Gross, Americas Longest War: Rethinking Our Tragic Crusade against Drugs (New York 1993) p. 348. For a commented review of this book: R. Barnett, ‘Bad Trip: Drug Prohibition and the Weakness of Public Policy’, The Yale Law Journal (1994) p. 2593. See also: S. Wisotsky, with foreword by Thomas Szasz, Breaking the Impasse in the War on Drugs (Westport (CT) p. 279; E. Nadelman, ‘Thinking Seriously About Alternatives to Drug Prohibition’, Daedalus 121:85, 1992. 109  Ethan Nadelman suggests that a lot of experiments might be necessary and that this should be done at the local level. A fIrst step would be giving up the federal prohibition and leaving the decision up to the states. Measures should be taken to avoid that states would ‘export’ their drug problem to the more liberal ones. Maybe the federation would therefore have to create a minimum: a right of possession for individual use for instance. We insist on proceeding in a very cautious way, but on the other hand the experiment should also be given enough time. Prohibition had decades, legalization (or harm reduction) experiments deserve at least a few years. 108 

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It should be clear that neither prohibition nor legalization can solve the drug problem. The question is to know under which regime the social cost is the lowest and the repartition of the burden is fairest. 4.4. Conclusion There are plenty of arguments against an immediate reform like the one proposed in the NPR Report. Historical reasons for retaining the DEA as a separate agency are not convincing any­more. The biggest problem is the existence of different bureaucratic cultures and the det­rimental effect that would have if the agencies were merged overnight. The differences are diminishing though and if managers make sure this process goes on, within a few years a merger should be possible. The Clinton Administration in the 1993 reshuffle stopped short of a complete reform, but appointed the FBI director as an interagency arbitrator. That is just a step in a process, which in the long run must lead to the disappearance of the existing struc­ture, which is to a great extent the result of historical accidents. Such a merger might tempo­rarily slow down the efficiency of drug law enforcement, but a less aggressive approach to the drug problem, handling drugs as a social and medical problem and reducing the crime and harm resulting from it, might be preferable to an increase in the drug war effort. In the long term a form of legalization will have to be considered, although the idea remains very controversial. In any event, a lot of wasteful overlap and competition can be eliminated. The benefits could be invested in prevention and treatment. We also pointed out that the local and state level remain the centre of the criminal justice system, from a legislative as well as from an enforcement perspective. The federal system’s high profile can be misleading. The fear of abuses by strong national law enforcement bure­aucracies is warranted by events of the past but does not justify the status quo. The American system of checks and balances should indeed stay in place to keep the bureaucracy under control, but the existing system is not the way of achieving that. Although accountability and the rule of law can obviously curb the efficiency of law enforcement, that does not mean that inefficient law enforcement structures guarantee the rule oflaw and accountability.

5. Europe, Half a World Away? 5.1. The US Law Enforcement Model, Unfit for European Consumption? In 2 and 3 we analysed American federal law enforcement, particularly focusing on drug law enforcement. Somewhat to our surprise, in the literature on the integration tendencies in the European Union, we found few serious studies in



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which the American federal system was analysed as a possible model.110 Why is the Atlantic still so deep? 5.1.1. The United States of Europe? 5.1.1.1. The Federalist Debate When Europeans jump to the conclusion that the American model is useless, their superficial knowledge of the legal and political structure of the US is usually to blame.111, 112 There are some fundamental differences in legal and political philosophy between the US and many a European continental nationstate. However, the internal structure of law enforcement within the traditional nation-state of continental Europe is not really at hand. The challenge of inter­ national crime dictates a coherent response on a European level. This does not necessarily mean creating a centralist superstate, but clearly the existing model of co-operation based on traditional international public law cannot remain the guiding principle either. A federal Europe, the long-term goal of the Communities’ Founding Fathers and still the guiding principle for many an advocate of deepening the EU, is pictured by others as a demon which should be fought by all means. Britain’s Conservative government has been the most candid in its crusade against a 110  Apart from De Feo’s short article, there are A. Martin, La coopération des polices en Europe, en 1993 (Toulouse 1992) pp. 96–102; N. Dom, ‘Subsidiarity, Police Cooperation and Drug Enforcement, Some Structures of Policy-making in the EC’, European Journal on Criminal Policy and Research (1993) pp. 30–47; H. Lensing, op. cit., pp. 213–215. 111  Most Europeans think that, however troubled their government and judicial system may be, the solution will not be found in the USA. The popular image of American criminal justice is the fruit of an intensive consumption of Hollywood movies and series. But even the better informed Europeans shiver at the thought of America’s media-trials, plea-bargains, sentencing guidelines and death penalties. America’s racial problems, liberal gun laws and often aggressive police tactics confirm the stereotype of a ‘western’ style justice. Sure enough, the American criminal justice system deserves criticism. Americans do realize that themselves and many of the arguments used in the law and order discussion are inspiring for non-Americans as well. 112  How widespread the misgivings are, is shown by this extract from a memo produced by the Europol Project Team: ‘Co-operation in the field of drug trafficking between the law enforcement agencies of different nations in Europe varies considerably from the cooperation existing between the agencies in the USA. These differences are principally due to the differing forms of government, legislation and law enforcement. Unlike the United States of America, the Member States within the EC have their own individual constitutions and legal systems as well as their unique history, culture and language.’ (Project Team Europol, The Position of Europol within the Framework of European Co-operation, Member State Institutions, European Information Systems, International Organizations and Agencies, 1993, 19 p at 16 (unpublished)). Of course American states have their own constitutions and legal systems. We tend to underestimate the historical and cultural differences that do exist between New York and South Carolina, between Texas and Montana, between Louisiana and Massachusetts, or between New Jersey and Utah. The differences are diminishing indeed, but so are differences in Europe (See for instance: B.S. Markesinis (ed.), The Gradual Convergence, Foreign Ideas, Foreign Influences, and English Law on the Eve of the 21st Century (Oxford 1994). The prevalence of the English language all over the US is indeed a major difference.

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federal Europe,113 but it has many (objective) allies all over the continent. It is fascinating that in the British rhetoric federalism is synonymous to centralization and lack of democratic control. Because that is exactly the opposite of what federalism traditionally stood for. Notions like ‘federalism’ and its guiding principle ‘subsi­diarity’ are vague by nature. The American federal model has plenty of problems too. It would therefore be unwise to make a carbon copy of it. Nobody seriously suggests that either. Nevertheless, as professor Manuel Ballbé,114 points out: the US presents Europeans with the model of a constitutional system that has lasted without interruption for two centuries. He stresses that federalism, and, more broadly, the culture of federalism that has evolved in the US, has been a key element in the survival of American democracy. If we are looking for a definition for our vague notion of federalism, it might not be such a bad idea to check how our American cousins understand by that notion. In the meanwhile we should keep in the back of our minds how and when the Americans did go wrong: slavery and the discrimination of minorities, the Civil War or … the Hoover days. Professor Richard Stewart claims that ‘federalism seeks to maintain political decentraliza­tion and social diversity while simultaneously promoting national measures to meet national needs’.115 That is vague enough too, but the similarity with the subsidiarity clause inserted in the Treaty of Rome by the Maastricht TEU is obvious.116 Manuel Ballbé stresses that the American definition of federalism explicitly transcends mere administrative necessity: ‘the system conceived by the framers of the American constitution and developed by later political thinkers recognises the inherent value of a diffusion of power, of partici­pation and shared deliberation, and of a constant redefining of the concept of com­munity itself.’117

We already noticed how this conception has influenced the structure of federal law enforce­ment and the general attitude of Americans toward it. We find a lot of positive elements in this attitude towards federalism. European history is full of examples of centralised govern­ments, which under the cover of ‘raison d’êtat’ (whether in the service of absolutism or democracy) have created a The British took pride in keeping ‘the F-word’ (federal) out of the Maastricht TEU. M. Ballbé, ‘Integration Through Law: Europe and the American Federal Experience, Book Review’, Harvard International Law Journal (1987) p. 581. 115  R. Stewart, ‘Federalism and Rights’, 19 Georgia Law Review (1985) p. 917. 116  Article 3b of the EEC Treaty, as changed by the TEU: ‘The Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein. In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and so far as the objectives of the proposed action cannot be achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community. Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty.’ 117  M. Ballbé, op. cit., p. 581. 113  114 



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disequilibrium in favour of pure administrative power. With Spanish history in mind, Ballbé warns that this power has on notable occasions deteriorated into authoritarianism. Sometimes ‘federal’ is just a label to sell what really is a centralist state. That is the case in some Latin-American countries like Mexico or Argentina. Many Americans claim that in the US too the centralization might have gone too far. The British are right to refuse such feder­alism. But if federalism is constructed as a brake on the concentration of central power, it seems the best formula for Europe too. 5.1.1.2. The Important Role of the Judiciary It will be fascinating to see what role the European Court of Justice will play in the ‘federalization’ of Europe.118 In the past, it has dragged integration forward in times of political stale­mate, through a flexible and progressive approach Community law.119 Its jurisprudence shows undeniable parallels with that of the US Supreme Court in matters of division of powers between states and Union, e.g.

118  It will be important whether in the future ‘subsidiarity’ will be exclusively a political notion, or also a legal one. See: K. Lenaerts and P. Van Ypersele, ‘Le Principe de Subsidiarité et son contexte: étude de l’article 3B du Traite CE’, Cahiers de Droit Européen (1994) pp. 1–102 (not merely political notion); W. Hummer, ‘Subsidiarität und Federalismus als Strukturprinzipien der Europäischen Gemeinschaften?’, Zeitschrift für Rechtsvergleichung (1992) p. 81; M.-A. Gaudissart, ‘La subsidiarité: facteur de (dés)integration européenne’, Journal des Tribunaux (Belgium) (1993) p. 173 indicates that subsidiarity can cut both ways and stand in the way of integration initiatives; N. Emiliou., ‘Subsidiarity: An Effective Barrier Against ‘the Enterprises of Ambition’?, European Law Review (1992) p. 383, p. 387, underlines that ‘issues of federalism, subsidiarity and separation of powers are intertwined’. 119  The introduction of the direct effect doctrine in the Van Gend en Loos case (Case 26/62, Van Gend en Loos v. Nederlandse Administratie der Belastingen [1963], ECR I.) has been an essential breakthrough. Costa v. Enel decision (Costa v. ENEL, ECJ, 1964, 585, 3.), establishing the supremacy of Community law over both prior and subsequent national law, is often compared to the classical US Supreme Court decision Marbury v. Madison. In that 1803 case, Chief Justice Marshall stated that if the Constitution is to be ‘higher law’, judges must be bound to apply it over conflicting ordinary law. Judicial review was born. And has been an essential feature of the American legal and political spectre ever since. (See: P.P. Craig, ‘Once upon a Time in the West: Direct Effect and the Federalization of EEC Law’, Oxford Journal of Legal Studies (1992) pp. 453–479). That Americans would be the first to accept judicial review is hardly surprising. When the Framers of the US Constitution embraced a federal structure with multiple legislators, the creation of an independent Court as the interpreter of the constitutional division of power between federation and state was the natural consequence of that choice. Furthermore, the US were born out of a reaction against a perceived abuse of power by the British parliament and government. Most European systems spring from a reaction against absolutism, a system in which the judiciary was an instrument of the executive. Judicial review has been rejected for centuries. Because it gives relatively unaccountable individuals (judges) and groups (the judiciary) the possibility of pouring their personal values into relatively empty boxes of vague concepts like liberty, equality, reasonableness, fairness, due process or subsidiarity. Moreover with only one sovereign, the national parliament, there was no need for a constitutional court. Hence the different conception of ‘separation of powers’ mentioned.

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the jurisprudence on interstate commerce.120 The ju­risprudence of the European Court of Human Rights, an institution of ‘the other, wider Euro­pe’ (the Council of Europe), bears some similarity to the Warren Court.121,122 A serious debate on the role of the judiciary within the constitutional framework of Europe is indispensable. Until now, the European judiciary has mostly been a check on national gov­ernments and legislatures. American citizens rely on the US Supreme Court in a similar way, when they believe that the state has violated the US Constitution. To the extent that power shifts to the federation however, individuals and states will more and more rely on the Court for protection against ‘Washington’. In the European Community, the Council and Parlia­ment have traditionally been weak. Therefore the Court expanded the Community’s jurisdic­tion in a way that is similar to the Supreme Court’s use of the interstate commerce clause. The cases in which the Court had to blow the whistle on Community institutions were less numerous. If the European Union or one of its agencies were to become too powerful, and that is something most opponents of Europol fear, the European Courts123 could be an im­portant check on that power.124 Unfortunately, as the negotiations on the Europol Conven­tion have shown, the British and French are extremely suspicious of any expansion 120  Francis Jacobs quotes Federico Mancini who in The Making of a Constitution for Europe, describes how the ECJ sought to ‘constitutionalize’ the Treaty, to fashion a constitutional framework for a quasi-federal structure in Europe. (F.G. Jacobs, ‘Europe after 1992: The Legal Challenge’, in: The University of Chicago Legal Forum, Europe and America in 1992 and Beyond: Common Problems. Common Solutions?, Chicago (IL), University of Chicago, 1993, pp. 1–16 at 15; see also K. Lenaerts., ‘Some thoughts About the Interaction Between Judges and Politicians’ in the same book, pp. 93–134.) 121  Cf supra. The latter interpreted the Amendments of the Bill of Rights rather liberally and held most provisions applicable to the states. The former has turned the European Convention on Human Rights into a kind of European Bill of Rights. In the last decades it has, in H. Lensings’ words: ‘increasingly construed the rather general and vague provisions as comprising detailed rules of criminal procedure. This has not been achieved by giving general rules as if the Court were a legislature, but by decisions on the facts of individual cases. Although the Convention originally meant to safeguard rights at a minimum level, its provisions have more and more been construed by the Court in a liberal way.’ (H. Lensing, op. cit., p. 218). See for a comparison of the American and European jurisprudence regarding certain investigative techniques: C. Fijnaut, De normering van het informatieve onderzoek in constitutioneel perspectief (Deventer 1995) p. 58. 122  See K. Lenaerts., Constitutie en rechter: De rechtspraak van het Amerikaanse Opperste Gerechtshof, het Europese Hof van Justitie en het Europese Hof voor de Rechten van de Mens (Antwerpen 1983) p. 610. 123  The relationship between the EU’s European Court of Justice and the Council of Europe’s European Court of Human Rights will have to be defined more clearly. 124  Interestingly enough, there is a sharp contrast between the American Supreme court, with its highly politicized and mediatized selection process and the subsequent scrutiny of the individual judges decisions and opinions, and its European ‘equivalents’. The latter’s judges keep a rather low political profile, their nominations are not at all subject to a broad debate, they happen in the semi-secretive manner of diplomatic negotiations. Their tenure is limited and they depend on the government of their country of origin for an extension of that tenure. That makes it a lot more difficult to take a controversial independent stance, but it makes them on the other hand more ‘accountable’.



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of such ECJ-supervision. Finally, it should not be forgotten that ‘European’ law is also shaped by na­tional courts and tribunals, under the guidance of the European Courts. They too can – and in criminal matters probably will – in a less visible way, play an important part in the ‘euro­peanization’ of law.125 At the moment, few people label the EU as a federal structure.126 The best term seems to be ‘quasi-federal’.127 In any case, for any two states of the EU, it is anachronistic to stick to traditional international public law while dealing with international crime in the EU and the state reaction to it. There is enough ‘affinity’ between them to go somewhat further. If different countries want an effective (repressive) response to the phenomenon of interna­tional crime, their co-operation will have to go beyond police matters. There seem to be only two alternatives. The most radical one would be the creation of a separate ‘supranational’ criminal justice system. The other one would be a serious relaxation and deformalization of international legal assistance structures. That would require the development of a coherent system of rules on conflicts of criminal laws.128 For both, an understanding of the different political and legal approaches to international crime is a precondition. Conflicting attitudes of common law and civil law countries (and between different civil countries) towards interna­tional criminal law have often caused a lot of friction and misunderstandings. In this para­graph we already illustrated some aspects of the ‘Americanization’ of European integration. We will try to point out that a significant ‘Americanization’ of European (and some ‘euro­peanization’ of American) law enforcement has taken place too. Whether we like it or not, the differences between Europe and America are not as big as we often like to claim. The Americans of course started a century and a half sooner. If we keep neglecting the possibility of ‘American’ answers to European problems in matters of constitutional, administrative and criminal law, we are burying our heads in the sand.

125  See on the role of an ‘independent’ criminal judiciary: R. Foque, ‘The Independence of the Judiciary and the Administration of Criminal Justice’, European Journal of Crime, Criminal Law and Criminal Justice (1993) pp. 332–349. 126  ‘Some features of European Community law are still “international”, but an increasing number are ‘constitutional’, and also the structure of the Community order resembles the constitutional order of a State’ (D. Obradovic, ‘Community Law and the Doctrine of Divisible Sovereignty’, Legal lssues of European Integration, 1993/1, pp. 1–20). 127  M. Cappelletti, Seccombe and J.H.H. Weiler, ‘Integration Through Law; Europe and the American Federal Experience’, in M. Cappelletti et al. (eds.), Integration through Law (New York 1986) Vol. I, Book I, pp. 3–68 at 12; H. Lensing, op. cit., p. 212. 128  A project like the American Law Institute’s Model Penal Code, is generally considered to be something that would not solve the European problems. Nobody is really promoting such an idea. (See: Ch.J. Enschede, Model Penal Code for Europe (Arnhem 1990) p. 41). The Council of Europe does work on recommendations that aim at some harmonization of the criminal law and procedure of its Member States.

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5.2. Different Approaches towards International Criminal Law Enforcement 5.2.1. Jurisdictional and Other Problems The successful prosecution of international criminals129 depends on the possibility to acquire information in foreign states, to gather evidence which can be used against the defendant and to bring the defendant and witnesses to the forum state for trial. In an interesting article, Har­vard’s Philip Heymann listed some of the most familiar sources of trouble in the field of international co-operation in law enforcement.130 We will not elaborate on them, but merely conclude that the plenitude of practical problems all boil down to one thorny question: the deeply rooted distrust of other country’s criminal justice systems. Of course this is some­times justified, but it will have to diminish if one is to come to a system that really works. 5.2.2. Heymann’s Two Models of International Law Enforcement Even if the primary obstacle of choosing which criminal law to apply can be overcome, the existence of very different attitudes towards law enforcement still undermines international efforts to get anything going beyond the information exchange through Interpol. Philip Hey­mann sees a basic difference between what he calls ‘the prosecutorial model’ one the one hand and an ‘international law model’ on the other. In his view, the international law model envisages a structure of rules so carefully designed that it could apply to co-operation between any two states, even those with widely disparate political views and legal traditions. This system would be based on lawyerly interpretation of carefully negotiated agreements which specified precisely what types of cases called for assistance. No less important­ for the other state may be unfriendly, repressive, or erratic – the system would also specify as precisely as possible those cases in which assistance should be denied.131

Under such a regime which stresses national sovereignty, measures regarding cross-border crime will result in international pressure to do something about it. That obligation is usually specified in bilateral or multilateral treaties. The governments in general and their foreign of­fi ces in particular will be the 129  This can contribute to a decrease in international crime, but is of course not the same. In our previous criticism of the drug war, we pointed out that prosecution. conviction and punishment of drug traffickers, dealers and users has not curbed the flow of drugs or the amount of crime related to drugs. 130  As we said, it was Heymann who, as Deputy Attorney General, was responsible for the 1993 reorganization of American federal law enforcement. 131  Ph. Heymann, ‘Two Models of National Attitudes Toward International Co-operation in Law Enforcement’, Harvard International Law Journal (1990) p. 104.



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protagonists of such international law enforcement effort. En­forcement of such obligations under international public law is always difficult. Governments tend to vary in how high a priority they make of international crime, but it is rarely a number one priority. The enormous bureaucratic track a file must follow, is so time-consuming that no important case can be made to depend on it. Friendly countries therefore try to bypass that bottleneck and work out more direct co-operation between crime enforcers in the field. In doing that, they move, little by little, towards what Heymann calls the ‘prosecutorial model of law enforcement’. Such a system of mutual assistance is only feasible between countries with similar interests, foreign policies and concerns about a fair system of criminal justice. It enables investigators, prosecutors and judges to co-operate informally, without the strangling effect of restrictions and rigid rules. They can depend on the other not to make unreasonable demands and do not have to rely on a ‘political offence’ exception. A request need not be investigated as to the fulfilment of the double incrimination requirement. Mutual trust in the legal system of the requesting and requested state is the guiding principle. The investigation into the validity under international law of the requesting country’s claim of jurisdiction would also become superfluous.132 Traditionally, Americans have seen the prosecutorial model as the best way of structuring in­ternational law enforcement between friendly states. To some extent, very informal co-oper­ation and mutual trust are the guiding principle of co-operation between different states of the US too. We pointed out that the existence of an alternative, a separate system of federal criminal law, means that the need to co-operate is not felt as sharply as on an international level. That American prosecutors playa greater role in policy making than their civil law counterparts is not unimportant. They also have the common law tendency to think in terms of discretion and the acceptance of informal negotiation in resolving cases, which, according to Heymann, ‘gives rise to a more casual attitude towards international co-operation’.133

132  Such a pragmatic approach is very well suited to the needs of law enforcement, yet less appreciated by defence lawyers and civil rights advocates, who see it as a violation of the equality of arms rule. 133  He even brings it down to a more fundamental level: the civil law tendency to think in terms of rigorous, systematic and non-discretionary enforcement results in a ‘legal framework of rules and structures’ attitude towards law enforcement. As such it reflects the tradition of continental thought characterized by systematic, structured analysis of areas as diverse as psychology and international law, different from the traditions of English speaking nations that stresses topical, pragmatic thinking. The differences therefore are of a fundamental nature. Changing them is not easy, but the process has been going on for quite a while already.

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Apparently, the European police world looks for inspiration in the US with less reluctance than prosecutors, judges and politicians. They realise that beyond the procedural differences, the essence of their mission is more or less the same as that of police forces in the States: ‘to get the crooks behind bars and the stuff off the street’. Precisely this pragmatic attitude brought them closer to the customs of the English-speaking legal world. Prosecutors and judges are by nature more sensitive about the formalities of law and the individual rights they protect. When US ‘law enforcement missionaries’ embarked on the coasts of continental Europe, especially from the 1970s onwards, they received a warmer welcome from the police than from prosecutors, judges or politicians. The American overseas agents were exponents of the policy of successive American presidents to pressure foreign governments to join the world­wide war on drugs134 and their activities brought about some fundamental changes which amount to a form of Americanization’ of law enforcement in Europe. Ethan Nadelman, who made an excellent analysis of this phenomenon,135 distinguishes the three levels where changes have taken place. The first one was institutional. Specialised drug enforcement squads and prosecutors specialising in drug trafficking cases, virtually non­existent until well into the 1960s, have become a most familiar feature in police agencies all over Europe. The second change was operational. DEA and FBI agents and their European colleagues assisted each other in the detection of crimes and the arrest of suspects. European policemen thus used information provided by the Americans and borrowed their global com­munication systems. The Americans also provided their counterparts with personnel and money for undercover operations, they trained them in proactive police tactics against drug traffickers. Short term infiltration, ‘buy and bust’, the ‘flipping’ of informants through re­duced charges or immunity from prosecution136 and controlled delivery are now common practices in Europe too,137 albeit with remarkable differences from one country to another. Twenty five years ago, virtually all these techniques were seen throughout continental 134  Making the war against drug traders a police priority was the first task of American (DEA and to a lesser extent FBI) agents abroad (the State Department and the CIA were for a long time reluctant to make drugs a priority). Looking at the immense amount of people and resources dedicated to the fight against drug trafficking worldwide, they seem to have accomplished their mission. 135  E. Nadelman. op. cit., pp. 189–249. 136  This had been a practice in the United States for decades and approved by US Courts during (alcohol) Prohibition, if not before. (K. Murchison, ‘Prohibition and the Fourth Amendment: A New Look at Some Old Cases’, Journal of Criminal Law and Criminology (1982) pp. 471–532; E. Nadelman, op. cit., p. 192.) 137  C. Fijnaut, ‘Europeanisation or Americanisation of the police in Europe?’, in Nederlandse Politie Academie, The 2nd European Police Summer-Course (Apeldoom 1990) p. 24 at 26.



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Eu­rope as unnecessary, unacceptable and often illegal. Only internal security agencies resorted to them, usually without any judicial supervision at all. When police forces changed their minds and started to adopt these tactics, the need for a third, legal change became evident. Throughout the seventies and eighties the legality of the techniques remained most question­able and judges (sometimes even prosecutors) were left in the dark by the police for fear of having cases thrown out of court. Ultimately, when the police convinced judiciary and legis­lators of their operational necessity, some of the more intrusive police techniques have been or are being legalised.138 In short, European police practices have become more harmonised, modernised and pro­fessionalised. One could say that they have been ‘Europeanised’, but actually the whole of Europe has been Americanised to a certain extent. Nadelman rightfully warns that it might be an exaggeration to attribute this development entirely to the pressure of the Americans (as the DEA and American government in general like to do). For the creation of specialised drug squads, the adoption of some DEA style undercover tactics, the ‘flipping’ of informants and the enactment legislature enabling forfeiture of drug traffickers’ assets, this was undoubtedly correct. Another part of the evolution however is simply the result of the lack of alternatives to deal with drug trafficking, and would have happened regardless of the influence of Ameri­can colleagues. In that sense, the Americanization of Europe is of a chronological, not a cau­sal nature.139 The fight against terrorism, that served as a catalyst for international co-operation, also led to the acceptance of the very same police tactics and techniques that would later be used in the drug war.140 There are other tendencies which indicate that Europe and America are beginning to resemble each other more and more. Europeans have for in­stance followed the American policy shift to concentrate more and more on the financial assets and money-laundering structures of drug traffickers.141, 142 138  Earlier on, we already pointed out that Europeans normally make a lot more use of wiretapping than their American counterparts. (II, 3. 3. I. 3.) 139  E. Nadelman, op. cit., p. 196. 140  There is a striking similarity between the arguments used against the increase in police powers in certain European countries to fight terrorism and the arguments of civil libertarians against the drug war as justification for increased police powers in the US. The ‘conspiracy’-theories (remember Epstein) may be more founded in some countries than in others, the argument that the cost in civil rights was too high deserves more attention. 141  B. Zagaris. ‘Dollar Diplomacy: International Enforcement of Money Movement and Related Matters – A United States Perspective’. The George Washington Journal of International Law and Economics (1989) pp. 465–552. 142  Another one of the trends coming over from the United States is the booming of a private security industry. Not surprisingly, Britain takes the lead in this evolution, but others move in the same direction. Spain is an example. Some authors attribute this in part to the unpopUlarity of the forces of public order in the post-Franco period. (N. Dorn, op. cit., p. 42.) But in other countries, without authoritarian tradition, the same trend is obvious. Dorn, of the London based

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6. The Reform of European Law Enforcement 6.1. The General Structure of European Law Enforcement In 5.2. we described the difference in the basic philosophy behind government bureaucracy in a typical European country on the one and in the US on the other hand. J.Q. Wilson points at the consequences this has for the organization and management of their respective bureau­cracies. The US governments were not designed to be efficient and powerful, but to be toler­able and malleable. The Framers of the constitution assumed that the federal government would exercise few and limited powers. They knew that the separation of powers would make it so difficult to start a new programme or create a new agency, that they could not be bothered to think how those agencies would be administered. As a result the US constitution is virtually silent on what kind of administration the United States should have. Much of Eu­rope was long ruled by kings and princes, so that the tradition of ruling was well established when parliaments gained authority. From the very beginning the ministers of parliamentary regimes were concerned with organizing the administration, because there was really some­thing to administer. The centralization of executive authority in the hands of a prime minister and the impossibility (by and large) for parliament to have much of a voice in executive mat­ters facilitated the process of controlling the administrative agencies and bending them to central will. ‘The constitutions of many European states,’ Wilson observes, ‘could have been written by a school of management’.143 In this comparison, the ‘government’ of the European Union shows a lot more similarity to the US administration than to that of a typical European nation-state. The Treaties were care­ful to stress the limits on European power and there are so many constraints on the Com­mission (the European executive) as to make any vigorous policy impossible. As in the US the power of the Union has been increased through judicial policy making, but unlike the US government the Commission has no democratic legitimization through direct election and for its decisions it is to a great extent dependant on the national governments. Another important difference is that the Treaties establishing the EU describe the proce­dures for decision making and have plenty of mechanisms built in Institute for Drug Dependency finds some common points in the evolution of policing in the member states of the European Union: ‘managerialism’ in police organizations, objective setting and monitoring of performance indicators, financial accountability and the development of what he calls ‘the business model’ of policing. He then goes on to analyze several aspects of this process: the ‘civilianization’ and/or contracting out of support services; the development of an ‘internal market’, within which police services would trade their services with each other and the contracting out of police services to private sector providers (Dorn, op. cit., pp. 43–44). It is difficult not to hear the echo of American voices in this ‘discourse’. 143  J.Q. Wilson, Bureaucracy, pp. 376–377.



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which allow national gov­ernments and EU institutions to slow down or to block the decision making process. Rather than too strong a government, the EU’s problem is often said to be too weak a ‘government’. Member states represent a very strong check on the EU. So does the Court of Justice. Extra checks and balances, like the competition between different EU agencies should therefore be avoided. In Europe, the absence of a supranational criminal justice system has created a very intense form of co-operation between the different national authorities. In spite of the existing multi­lateral schemes, bilateral initiatives are still crucial.144 Their importance is of course condi­tioned by the geographical situation of the particular state and the prevailing political climate between the states.145 More classical legal assistance is of course well developed too.146 This has happened mainly at the initiative of the Council of Europe. One of the guiding principles of the European Community, the mutual recognition of the legal systems of the different Member-States (i.e., that fulfilment of the requirements of the legal system of one member, are accepted as sufficient guarantee by the others; an expression of mutual trust between the Member States), clearly does not apply to criminal justice matters yet. The Council of Europe’s instruments give a requested state plenty of possibilities to re­fuse to co-operate for a variety of reasons. This is also true of the initiatives within the EU, like Schengen or TREVI. In the future, Europeans cannot but evolve towards the informal, prosecutorial approach we described in 5.2. It is the only sensible way to respond to the urgent need to simplify and rationalise intra-EU investigations and judicial assistance. By the way, it seems that informal co-operation is the rule rather than the exception in current law enforcement practice. The of­fi cial channels are subsequently used to ‘launder’ evidence or information, or when the infor­mal channels have been blocked for one reason or another. Those who fear for the rights of the defendants under such an informal regime should not rely too much on the formal guar­antees offered by the international law model. That is based on state interests, not on individ­ual ones. Other safeguards for the protection of the defendants rights will have to be created. Unfortunately, in the current political climate that does not seem to be a high priority.

144  For an exemplary yet still imperfect cooperation: G. Renault and E. Derriks, La collaboration transfrontalière entre la Belgique et les Pays-Bas: les obstacles législatifs (Brussels 1994) p. 155. 145  In recent years Franco-Spanish cooperation has proven itself very successful in the fight against the Basque separatists of ETA. But fishermen of the two countries engaged in a tuna war last summer, when – according to the Spanish – French law enforcement turned a blind eye to French fishermen violating EC-rules. And there have been numerous other notorious incidents. 146  E. Müller-Rappard and M. Ch. Bassiouni, European Inter-State Co-operation in Criminal Matters: The Council of Europe’s Legal Instruments (Boston 1993) p. 1725.

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At the Maastricht Intergovernmental Conference all the participants realised that the Member States could no longer act as if foreign and defence matters or internal security issues (Justice and Home Affairs – JHA) could be conducted without any regard to the European Com­munities, the economical motor of European integration. So a European Union was created. The supporters of Community-orthodoxy (led by the European Commission) saw the EU as a tree: the Communities would form the trunk and the foreign and internal security policies would be branches springing from that communitarian core. Within the branches stricter procedures and voting rules would guarantee that Member State sovereignty would be given more weight than in the Community itself. This concept did not make it. Instead, the FrenchBritish model of a ‘Greek temple’ was chosen: the EU as a roof resting on three pil­lars. The European community formed the first pillar, the Common Foreign and Security Pol­icy the second, the Co-operation in the fields of Justice and Home Affairs the third. The latter two are intergovernmental, which means the Member States preserve the right of initiative and veto-rights and the input of the Community institutions (Commission, Court and Parlia­ment) varies from very limited or optional to virtually non existent.147 As we pointed out, the third pillar is governed by the provisions of the TEUs Title VI (Art. K). We will not go into the provisions of Article K. We refer to the existing literature148 and we believe that the merits of the intergovernmental approach will be discussed broadly in view of the 1996 Intergovernmental Conference on the revision of the Maastricht Treaty. Some possible openings towards a ‘communitization’ of the Third Pillar exist,149 the Euro­pean Parliament even wants to do away with the pillar structure. It is quite improbable that there will be a major breakthrough. In any event European co-operation in Justice and Home Affairs has been restructured or brought within a permanent bureaucratic structure. There is a Council of Interior and Justice Ministers, whose activities are prepared by COREPER and by a newly created ‘K4 Committee’, composed of high officials 147  J. Cloos, G. Reinesch a.o., Le Traité de Maastricht, genèse, analyse, commentaires (Brussels 1993) p. 107. The authors stress that the difference is one of presentation rather than one of substance. 148  For instance: A. Lo Monaco. ‘Les instruments juridiques de coopération dans les domaines de la Justice et des Affaires intérieures’, Revue de Science Criminelle et de Droit Pénal Comparé (1995) pp. 11–21; Müller-Graff. ‘The Legal Basis of the Third Pillar and its Position in the Framework of the Union Treaty’, Common Market Law Review (1994) p. 493; I.D. Hendry, ‘The Third Pillar of Maastricht: Co-operation in the Fields of Justice and Home Affairs’, German Yearbook of lnternational Law (1993) p. 295; J. Monar and R. Morgan (eds.). The Third Pillar of the European Union (Brussels 1994). 149  For an analysis: M. Den Boer, ‘Police Co-operation in the TEU: Tiger in a Trojan Horse?’, Common Market Law Review (1995) pp. 554–578.



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who co-ordinate the activities of the working groups. The working groups react under one of the three ‘steering groups’, which report to the K4 Committee. The Council can adopt Joint Actions and Joint Positions (Article K. 3. TEU). They are novelties in European Law and find their origin in the second pillar. Joint positions would be taken in relation to the outside world (at international conferences for instance), joint actions would refer to initiatives taken within the EU. Their legal value is unclear. It seems they have whatever value the Council decides to give them. That means they are not legally binding un­less the Council clearly decides they will be. Article K. 3. also envisages the conclusion by the Council of conventions, the classical tool for co-operation between sovereign states. The Council will then recommend to the Member States that they adopt these conventions in con­formity with their national constitutional procedures. That will normally require parliamen­tary approval of the content of such conventions, sometimes even a referendum will be necessary. 6.3. The Europol Drugs Unit Article K. 1.9. TEU clearly allowed for the creation of Europol, but the matter was seen as so important and sensitive as to require a specific convention. Eager not to let the fight against international crime be stalled for too long, an embryonic Unit was set up by Agreement be­tween the Ministers of the Interior. This so-called Europol Drugs Unit would perform Euro­pol functions within a limited scope (international organized drug trafficking) and without using personal data for analysis. This means that every Member State sends one or more liai­son officer to The Hague. They will exchange information with the liaison-officers of other countries, each under the legislation, orders and control of their own country. EDU is there­fore a forum for bilateral and multilateral exchange. They receive help from the EDU staff. EDU also has an analysis unit, but prior to the entry into force of a Convention it is not allowed to use ‘personal data’. Since the negotiations on a Convention are proceeding very slowly, the Ministers decided to extend the scope of the EDUs activities.150 This was a face­saving measure for the German presidency which had promised to forge agreement on a Con­vention. This not so democratic way of extending the EDUs remit received quite a lot of criticism.151

150  The Europol Drugs Unit is dealing with illicit drug trafficking,illicit trafficking in radioactive and nuclear substances, crimes involving clandestine immigration networks, illicit vehicle trafficking together with the criminal organizations involved and associated money-laundering activities. (Art. 2 J0int Action of 10 March 1995 adopted by the Council on the basis of Art. K. 3. of the TEU concerning the Europol Drugs Unit – 95/73/JHA, OJ L 62, 20 March 1995). 151  X, ‘EDUs mandate “extended”, Statewatch November-December 1994, p. 1.

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In the meantime, the EDU is currently working in a very pragmatic way. Its first year pro­gress report suggest that the Unit has already had some remarkable achievements.152 6.4. The Europol Convention After more then two years of difficult negotiations, there is finally an agreement on a Europol Convention. This Convention will legally establish Europol and describe its tasks.153 It will regulate its legal status, organization and financial provisions (budget, organs, director, staff, …). It will establish the information system (exchange between Member States) on the one hand and the collection, processing and utilization of personal data for analysis on the other. The provisions on information processing (duty to notify, data protection standards, correc­tion and deletion of data, supervisory bodies, …) are completed with rules on liability and on jurisdiction over disputes. Every Member State must create or designate a single National Criminal Information Service (NCIS), as the nerve centre for all the criminal information available within a country. That NCIS will be the sole correspondent for the liaison-officer of the same state at Europol. A local investigator in Belgium hoping for some information from Italy, will therefore address his request to the NCIS in Brussels. If necessary they will contact their liaison-officer at Europol in The Hague. He (or she) will then contact the Italian liaison ­officer, who in turn contacts the Rome NCIS, which 152  EDU/Europol-Report on the activities of the Europol Drugs Unit between 1 January and 31 December 1994 – First year progress report, 4533/2/95 EUROPOL 8 REV 2, Brussels, 2 March 1995(restricted). 153  Next to the ones already in the remit of the EDU, other forms of crime could be transferred to Europol: 1. Terrorism; 2. Other serious forms of international crime: (a) against life, freedom from bodily harm and personal freedom: homicide, grevous bodily injury, kidnapping and hostage taking, unlawful trade in organs, exploitation of prostitution; (b) against the state: illegal trafficking in arms, ammunition and explosives; illegal transfers of technology, traffic in human beings, unlawful supply of labour; forgery of official documents; environmental crime; illegal trafficking in works of art and antiquities (in particular related to burglary and receiving stolen property); (c) against the property of others: robbery and blackmail (in particular extorsion of protection money); forgery of money, checks and securities and passing of such forgeries; credit card crime; product piracy; investment fraud; computer crime; fraud (Art. K. I. (5) TEU) and related – illegal money laundering, – membership of a criminal organisation. (Annex of the Draft Convention on the Establishment of a European Police Office (Europol) in: House of Lords, Select Committee on the European Communities Report (HL Paper 51), (London 1995) p. 65.



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can send the information in the other di­rection. Belgians stick to the rules laid down in Belgian legislation, Italians are bound by Italian law.154 Each NCIS decides which information should (not) be forwarded to Europol. It is remarkable that the protection of the individual and the supervision have received more and more prominence as the negotiations proceeded. The fierce criticism of civil rights advocates and academics on the uncontrolled flows of personal information has certainly contributed to this evolution. Special supervisors will watch over each NCIS and a joint supervisory institution will keep an eye on Europol. How the system will work in practice re­mains to be seen. Spain (and Greece) succeeded in obtaining that, two years after the entry into force of the Convention, terrorism will fall within Europol’s scope of activities. Other countries wanted to exclude terrorism because they fear that such a ‘political’ offence would cause definition and practical problems. The two year waiting period is a compromise, allowing Europol to have a warming up period in less stormy waters. The only remaining obstacle is the British refusal to grant the European Court of Justice jurisdiction to guarantee uniform interpretation in the application of the Convention. The euro-enthusiast Benelux countries stated that they will not ratify the Convention until this matter has been resolved. It goes without saying that this ‘Conventional’ Europol is not a European FBI: it will not conduct its own criminal investigations. 6.5. Why Not a Euro-Bureau? 6.5.1. Historical Reasons There are historical reasons why Europeans fear a pan-European police force. Relatively few people have even the faintest idea of what the Napoleonic police system was like. Memories of the Gestapo period are however a lot stronger. In Greece, Spain, Portugal or the Eastern part of Germany the memories of life in a police state will not fade easily either. Europe has had centuries of experience with ‘agents provocateurs’, infiltrators who were used by governments to discredit dissident political groups (anarchists, trade unions, nationa­lists, etc.).155 The Hoover-era FBI agents, who harassed 154  Following the collapse of the Soviet Union, German police authorities reported a sixfold increase within three years in the number of cases of suspected crime involving nuclear material. Stronger pressure by the Italian authorities on the Mafia was leading to the emigration and regrouping of its leaders elsewhere in Europe. Spain was concerned with the transit traffic of cocaine from North Africa and South America and the Netherlands was concerned at the increase in drug dealing in Amsterdam. The United Kingdom was in the forefront of action to control and criminalise money laundering – for which London’s complex financial markets made it an attractive base. All countries will have to meet a minimal data protection standard. (HL Paper 51, 15 and 71). 155  W.O. Weyrauch, ‘Gestapo Informants: Facts and Theory of Undercover Operations’, Columbia Journal of Transnational Law (1986) pp. 553–596.

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and discredited their superior’s pol­itical opponents, were also ‘agents provocateurs’.156 That meant that they operated in full se­crecy, without serious political or judicial control. With the classical problems: abuse of power, a lot of media speculation on dubious activities, no control on the allocation of human and financial resources. In some countries the controversy surrounding the secret services was sharper than in others, Italy and Belgium being the most extreme cases. In the fight against terrorism, the secret services have traditionally played an important part. This was re­flected in the secretive structure of TREVI. We described in 5.3. how the DEA succeeded in convincing most European law enforcers of the necessity of intelligence and the use of proactive techniques. Some of the more proac­tive practices adopted by the Americans, like long term infiltration (deep cover) and ‘sell and bust’, are still rejected in most European countries. We mentioned the doubts the Americans themselves have sometimes about the former. The latter is at odds with the European notion of entrapment. The secret services, already engaged in the fight against terrorism, have – especially since the end of the Cold War, focused their effort on international organized crime. Nuclear pro­liferation, illegal arms trade and drugs trafficking constitute their primary concerns. When studying the FBI, we pointed at the dangers of the fading of the lines between criminal law enforcement and counterintelligence. It will always be difficult to draw the lines.157 History taught the Europeans to beware of too much police power and the lack of account­ability. The memories of life in police states and troubling experiences with unaccountable security forces have made them suspicious about centralised and intrusive police forces, es­pecially if they are operating covertly. That is why some people react reluctantly to the idea of a European police force. They worry about whom is going to control it and about how abuses can be detected and remedied. History alone is not enough to refuse any form of Euro­pean police, but it does justify caution.

156  Interestingly enough, these and other curbs on police powers in Europe, so frustrating to the DEA-missionaries, were partly the result of the policy of US occupying forces in Europe in the aftermath of World War II. The strategy was to avoid and prevent the centralization of police and other governmental power of the fascist era. Then the Cold War began, and the Americans – fearing communist espionage, infiltration and agitation – quickly changed their mind. In America as well as in Europe they developed and promoted the notion of a ‘domestic security state’. Counterintelligence agencies were the fIrst to adopt the new sensitive techniques. But their operations were based theory that ‘the rule of law’ ended where the ‘raison d’état’ began. The modern American translation of ‘raison d’état’ is ‘national security’. It is obvious that the weight of national security in a nuclear age is different from what it used to be. If national security is too often and too broadly used, alarm bells should ring. Daylight usually is the best disinfectant for this kind of matters. 157  E.g.: on 21 September 1994, the German Bundestag approved a bill which makes a limited use of the secret service’s immense ‘eavesdropping’ installations against organized crime possible.



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6.5.2. Efficiency Reason: Europol as European Drugs Unit In its initial (pre-Convention) phase Europol is a European Drugs Unit. That does not mean it will become a Euro-DEA though. Other crimes have been added. Still more will follow. Eu­ropol as a single mission agency would not be a good idea, even less if that mission was drugs. The future in the field of safety and international crime is quite gloomy and we fear that the drug problem will be only one of the lesser evils for society. Moreover, many or­ganized crime groups in Europe seem to diversify: drug trafficking is just one of their illegal activities. In our introduction we hinted that drugs were the area in which an agreement on interna­tional police co-operation is easiest. We meant that both politicians and law enforcement people realise that a single nation cannot have a serious impact on the trade. One should by no means conclude that there is a general agreement on which policy to adopt towards the drug problem. On the contrary, diverging drug policies time and again undermined European Co-operation in JHA matters.158 The debate is intense and is far from over. The different EU countries will not be able to agree on a coherent drug policy. Our study of the American situ­ation has made clear how tough and dangerous drug enforcement is. A new agency like Euro­pol could not possibly stay away from drug enforcement. Drug trafficking is too important an issue to ignore. Neither should it put all its eggs in the drug enforcement basket. It should also spend its energy on less controversial matters, on areas where a broad consensus exists. Because a new agency needs tranquillity, neither its political sponsors nor its members should have opinions which diverge too much. We compared the drug war with Vietnam. It would be ‘mission impossible’ for Europol to have a real short term impact on the drug war. A (sense ot) mission is exactly what Europol needs: self confidence is the basis for good co­operation with partners.159 6.5.3. Political Reasons 6.5.3.1. Sacrificing Sovereignty We have in this article listed a series of elements indicating that European integration has more in common with the evolution in the US than people usually want to admit. It is never­theless obvious that at this very moment the opposition in almost every Member State would block any further shift of power from the national level to the EU. Criminal law and its en­forcement are very sensitive issues. States give them up only when they are under enormous pressure.

158  159 

Not seldom it was a controversy between the Netherlands and the rest: Benyon, op. cit., p. 144. Benyon, op. cit., pp. 191–192.

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In the future we will see more and more complicated multi-jurisdictional cases.160 Without some form of multi-jurisdictional law enforcement agency, an unprecedented amount of co­operation will be necessary to investigate such cases and collect evidence. Uncoordinated law enforcement action in one country can alert the criminal organization and ruin the work of in­vestigators in other countries, who might have invested lots of time and money in the case. Handling such cases would be rather simple if the facts constituted an offence under Euro­pean law and European law enforcement could investigate the case through its regional of­fi ces, following European rules of procedure. A EU prosecutor could subsequently bring the defendants before a European Court. If convicted, the sanctions could be executed in agree­ment with the state of origin of the convicted or the state where the forfeiture would have to be executed. Although there is no harm in dreaming about it,161 within the foreseeable future, such a construction remains quite unlikely.162 It is also true of course, that the discussion has only just begun and, to use Althusser’s words, ‘l’avenir dure longtemps’.163 When implementing EC directives money-laundering and insider trading (based on EC regulatory powers in bank­ing and corporate matters) most Member States resorted to criminal law in their choice of sanctions. The European Commission has antitrust investigative and sanctioning powers which can be considered as quasi-criminal. It appears that in the future the impact of the EU on national criminal law might become even bigger.164 The discussion on EU Criminal Law will be one of the most interesting of the coming decade. Its intensity will depend on the effi­ciency and transparency of the intergovernmental approach.

160  It is not hard to imagine a drug deal made in France between a Frenchman and an Italian, consummated in Germany with supplies brought from Turkey by a gang of Rumanians and ex-Yugoslavian refugees. To facilitate the transport, an Austrian Customs officer has received huge bribes, which he places on a bank account in Luxembourg before investing it in different corporations in Belgium. the Dutch Antilles and the Channel Islands. 161  U. Sieber, ‘Europäische Einigung und Europäisches Strafrecht’, Zeitschrift for die Gesamte Strafrechtswissenschaft (1991) p. 957; see also G.-H. Jung, ‘Criminal Justice – a European Perspective,’ Crim. L.R. (1993) pp. 237–245. 162  One just has too imagine that a politically explosive investigation the Italian ‘Mani Pulite’ (or even less pervasive ones, like the French Blood-transfusion investigation or the Spanish or Belgian corruption cases) would be conducted by ‘foreigners’, to realize that Europe is far from ready. 163  The proponents of a European criminal law should not be discarded too easily: they have a number of strong arguments. Indirectly, European Union law is already an influence on the law of the Member States. Rules of EU law can, as a result of the direct effect doctrine, be used as a defence to a criminal charge in a national procedure (J. Dine, ‘European Community Criminal Law?’, Crim. L.R. (1993) p. 247). 164  E.g. it is not inconceivable that in an effort to harmonize corporate law within the Union, the Council would direct the Member States to allow that corporations can be subjected to a criminal sanction. For some countries that would imply a significant change in their attitude towards criminal sanctions.



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We refer to what we said earlier on about the need for a more prosecutorial approach to in­ternational law enforcement and legal assistance. Some sacred cows will have to be sacri­ficed. The notion of ‘European citizenship’, introduced by the Maastricht TEU (but rejected by the Danes), implies equal treatment for a EU member’s citizen by other members. The continental tradition of refusing to extradite one’s own citizens does become an anachronism in such a Union. The idea of a European Political Union seems also incompatible with a ‘pol­itical offence’ exception to co-operation or extradition. In any event, those who claim that giving the European Union jurisdiction in criminal law matters would be a centralization of power that threatens democracy, should reflect on the in­tergovernmental option. That is based on secretive high-level deals. National parliaments are put in a take-it-or-leave-itposition. It is very unclear who has ratified what and with which exceptions. The intergovernmental model is by no means transparent and as such perhaps more dangerous than a separate EU criminal jurisdiction with European Parliamentary con­trol.165 National parliaments are supposed to provide control and democratic accountability. But they can only control their own representative in the JHA Council and do not have the means to sanction other Member States who do not meet their obligations. 6.5.3.2. Different Drug Policy?166 In Europe, though one is aware of the problem and its size, the policy makers and crime fighters are not (yet?) obsessed with drugs the way the Americans are. They do see drugs as an element in the current ‘crime-wave’, as a key-element even. But the reaction has not yet been draconian. The attitude of most European countries towards drugs has fluctuated signi­ficantly between tolerance and repression. Partly under American influence, the repressive at­titude seemed to get the upper hand. During the 1980s, countries that had traditionally refused repression as the right way to approach the drug problem, like Britain, Sweden167 or post-Franco Spain,168 toughened their attitude, but that never went as far as the American ‘zero tolerance’ or ‘war’ on drugs. Most Europeans do not think that the drug problem can be solved by a military crusade. Law enforcement goes after drug traffickers, but it does not do it at any cost. In recent years, the L. Van Outrive, ‘Is een Europees strafrecht mogelijk en noodzakelijk?” Panopticon (1994) p. 471. See also Commission des Communautés Européennes, Communication de la Commission au Conseil et au Parlement Européen concernant un plan d’action de l’Union Européenne en matière de lutte contre la drogue (1995–99), COM (94) 234 final p. 59. 167  S. Lindgren, ‘A Criticism of Swedish Drug Policy’, International Journal on Drug Policy (1992) pp. 99–104. 168  C. Gonzalez Zorilla, ‘Drugs and Criminal Policy in Spain’, European Journal on Criminal Policy and Research (1993) pp. 76–95. 165 

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pendulum seems to be swinging in the other direction again. In more and more countries the idea that the drug problem is a medical and social one, rather than one of a ‘law and order’ type, seems to be (re)gaining ground. At the moment the situation is therefore anything but clear. Different Member States are on different wave­lengths.169 Whether some form of legalization or decriminalization is at hand, is rather ques­tionable.170 The appearance of American rhetoric and a hypocritical ‘war on drugs’ seems even more unlikely. Making the drug effort the central task of Europol, would bring the agency in a political minefield of changing legislations and attitudes. It is hard to believe operations would be very successful in such a constellation.

7. Europol: A Few Remarks In months to come the Member State parliaments will have to debate the Convention that determines what Europol is going to be like, at least in an initial phase. In view of the Ameri­can experience, a few comments can be made. 7.1. Small is Beautiful. Territory Can Be Ballast A first mistake would be to try too much too soon. The FBI or the DEA were set up with a very limited number of offences they could investigate. Europol on the contrary, will be deal­ing with a long list of crimes. Whereas the FBI and DEA have full investigative powers, Eu­ropol’s first agents will not be doing ‘classic investigative work’. Their activities will be limited and that is a good thing. From this paper it should be clear that the basic principle of the European Union is, since Maastricht, subsidiarity and that the Union should not get involved in things that can be done better by the Member States themselves. As we pointed out, the same principle in the American system has not prevented a significant increase in federal power and bureaucracy. Subsidiarity nevertheless remains a rule of good management.171 In dealing with organized crime, especially in culturally diversified societies like the European 169  Benyon. op. cit., p. 144; C. Charlier, ‘Polémique entre Paris et la Haye sur la drogue’, Le Monde, 19 December 1992. 170  For a nice confrontation of pro and contra: I. Knauss and E. Erhardt, Freigabe von Drogen: Pro und Contra, Literaturanalyse (Wiesbaden 1993) p. 275. 171  As Wilson points out: ‘Authority should be placed at the lowest level at which all essential elements of information are available. Bureaucracies will differ greatly in what level that may be. At one extreme are agencies such as the Internal Revenue Service or maximum-security prisons, in which uniformity of treatment and precision of control are so important as to make it necessary for there to be exacting, centrally determined rules for most tasks. At the other extreme are public schools, police departments, and armies, organizations in which operational uncertainties are so great that discretion must be given to (or if not will be taken by) lower-level workers.’ (Wilson, Bureaucracy, p. 372.) We think that criminal investigation is situated somewhere in between, but



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ones, familiarity with the national or local culture, language and habits are often crucial.172 That is why the Con­vention rightfully limits Europol’s initial tasks to information-exchange, co-ordination and strategic analysis. A next step would be the development of high-tech support services. The fight against international organized crime, the reason for Europol’s existence, has evolved into a high­-tech business. Sophisticated bugging devices, wiretaps (for classical telephones, but also for satellite telephones173 or for computer networks),174 candid and aerial cameras, DNA ana­lysis and other laboratory services:175 their importance in criminal investigations in recent American history has been quite impressive. It is a near certainty that Europe will follow this trend.176, 177 However, the cost of developing and using such high-tech devices and very specialised support services is too high for individual countries to bear, especially for the smaller or poorer ones. Previously, the governments of Western Europe handled such matters within the context of TREVI,178 in the post-Maastricht structure labelled as ‘third pillar working group’. This coit is the task of Europol to supplement the information available to the local investigator, not to take the case out of his hands. 172  The successes of mafia-hunters Falcone and Borsellino (they succeeded in ‘flipping’ members of the Cupola of Cosa Nostra) are almost certainly a consequence of their being ‘real’ Sicilians themselves. That is how they could gain the trust of the mafiosi and read between the lines of their statements. 173  For an example of an audacious under cover operation in which Miami FBI agents set up and ran a cellular phone company for traffickers, which made eavesdropping on them quite easy: R. Kessler, op. cit., pp. 78–85; for a Yale computer science professor’s defence of bills which would effective wiretaps possible again – which had become more and more difficult as a consequence of technological evolutions, see: Gelernter, ‘Wiretaps for a wireless age, we can have it all: privacy and better law enforcement’, New York Times, 8 May 1994, op-ed page. 174  The FBI capabilities in computer snooping seem to be in quite an advanced state already. Again the secrecy about this investigation technique is supposed to stay one step ahead of criminals and spies. But the threat this poses to privacy, is obviously enormous. (X, ‘How to tap a computer’, Time, 7 March 1994, p. 30; E.L. Andrews plans to push computer coding police can read, ‘clipper chip’ to be used, vehement objections raised by private industry and groups concerned over privacy’, New York Times, 5 February 1994, p. 1). 175  D.H. Kaye, ‘DNA Evidence: Probability, Population, Genetics and the Courts’, Harvard Journal of Law & Technology (1993) pp. 101–172; A.A. Moenssens, ‘Novel Scientific Evidence in Criminal Cases: Some Words of Caution’, The Journal of Criminal Law & Criminology, Vol. 84, No. I, pp. 1–21; W.e. Thompson, ‘Evaluating the Admissibility of New Genetic Identification Tests: Lessons from the DNA War’, The Journal of Law & Criminology (1993) pp. 22–104; R.P. Harnon, ‘Legal Criticisms of DNA-Typing. Where’s the Beef?’, The Journal of Law & Criminology (1993) pp. 175–202; R. Kessler, op. cit., pp. 214–235 and pp. 252–264. 176  P. Tak and G. van Eikema Hommes, ‘Le test ADN et la procedure pénale en Europe’, Revue de science criminelle et de droit pénal compare (1993) p. 679; for criticism of a Dutch Bill (Dec. ‘91) on DNA-investigations: E. Burg, ‘DNA-onderzoek in strafzaken en het recht op onaantastbaarheid van het lichaam’, Delikt & Delinkwent (1993) pp. 336–350. 177  An FBI system which uses the computer to start an ‘aging’ process on the basis of an old photograph, gave Italian authorities an idea of what Godfather Toto Riina would look like in 1992, after processing a photograph which was some 25 years old. 178  E. Kube and W. Kuckuck, ‘Research and Technological Developments on the Police: Requirements from the Western European Point of View’, Police Studies (1992) p. 24.

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operation between national services could be supplemented with a European institute, preferably under the Europol roof. That is not only the cheapest solution. If Europol could offer these services, it would be another way to nurture the spirit of co-oper­ation with national police forces. That would be a lot better then Eurocops imposing them­selves. The modern FBI adopts a similar strategy toward local law enforcement. Hopefully, in the future the number of European law enforcement agencies operating with completely incompatible computers or communications will diminish. In some later phase, the EU should consider the implication of Europol agents in Euro­pean investigations, not as operators, but as managers of interstate task forces. They should co-ordinate the investigative actions, which should be conducted by national investigators respecting (harmonised) national laws and criminal procedure. A separate ‘federal’ judicial system does seem a short term option.179 Harmonization of criminal laws and procedures is already taking place in small areas, through the jurisprudence of the Coun­cil of Europe’s Court of Human Rights.180 In the initial EDU/Europol liaison-officers al­ready co-ordinate, but later Europol should have the possibility to give the national police forces certain orders, for instance to veto national operations which would be disproportion­ately harmful to parallel investigations in other Member States. Such decisions should not only bind Member State police forces, but also prosecutor services and investigating judges. Under the rule of law this can only be justified by complementing Europol with a European ‘judge of the (European) investigation’. That is clearly an idea that will have to mature for quite some time. In the meantime, the cross-designation of police officers (and later also prosecutors?) is definitely worth considering, although for cultural reasons it will not be as easy as in America. The previous suggestions should by no means have to lead to a massive central bureau­cracy. On the contrary, especially in the initial phase, strict limits on the tasks of Europol, will be necessary if the agency is to be efficient. People cannot handle too many different problems at the same time and strike reasonable balances between different tasks. If an agency has many tasks to perform, the neglect of secondary tasks can only be avoided crea­ting specialised subunits, with a certain degree of organizational independence. Secondary tasks are the ones which the operators do not consider to be essential to agency and worth 179  Cf supra The whole judicial protection of citizens in the EU is based on the principle that EU law should be applied by the national courts and tribunals, with the European Court of Justice as a guarantee against diverging interpretation. 180  Cf supra and R. deGouttes, ‘Vers un droit pénal européen?’, Revue de science criminelle et de droit pénal compare, p. 652; U. Sieber, ‘European Unification and Criminal Law’, Eur. J. Crime Cr. L. Cr. J. (1994) pp. 86–104; E. Roger France, ‘The Influence of European Community Law on the Criminal Law of the Member States’, Eur. J. Crime Cr. L. Cr. J. (1994) pp. 324–358.



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concentrating on. For a new agency that is being created out of still heterogeneous police cul­tures, it is better to start with a small nucleus of pioneers with a clearly limited agenda. Then a sense of mission can be developed, which would be absorbed by the people joining Europol later on. To Europol’s officers it must be clear precisely what is expected of them: they do not want ‘on the one hand this, on the other hand that’ orders. The political questions should be dealt with by the director and the supervising authorities. That is also why Europol should not be a drug agency. We learned that it is very difficult if not impossible to become an efficient drug enforcement agency. Drugs should be a con­cern, especially in as far as they are a source of income for organized crime groups, but in other important areas it will be easier to achieve something. Until the agency has built a reputation of its own, its initial results will be scrutinised by supporters and critics alike. Out­siders should be warned not to expect too much from Europol and thus avoid being fooled into a ‘state game’ in Hoover style. 7.2. The Sense of Mission and Police Culture Europe has different police cultures in different countries and even different cultures within a single country.181 We already noticed that overcoming cultural differences and creating a new culture is one of the most difficult tasks for an agency manager. Europol has to be the elite force which attracts talented law enforcement officers, believing they are joining some­thing special. High wages will not be enough (though they might be necessary): a good working atmosphere and job satisfaction will be just as important. With the exception of the liaison officers, the Eurocops will be EU-bureaucrats subordi­nate to their director and supervising board instead of being national police officials dispat­ched to Europol by their national governments. If Europol officials constantly have to refer to their government (or national superiors) for permission or consultation, this will have a strangling effect on all Europol’s activities. The agents should get a minimal operational free­dom without restraint from national governments. This might also simplify the liability issue, a very thorny question, especially when it is not clear whether the wrongdoing is attributable to Europol or to a national agency. 181  The development of a European police academy, a kind of European Quantico, is also being prepared as part of an effort to remedy this. The training of law enforcement officers varies enormously between the different countries and different forces. A European academy cannot only contribute to a harmonization of professional standards, especially on a management level. For the para-military anti-terrorist forces the cooperation and joint training exercises already go back for decades. Unfortunately, there seems to be little or no link with Europol. In any event, one should be careful not to exaggerate. The very different police cultures within the European Union should not be wiped out and replaced by a single (German?) police model.

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The people selected to go to Europol should not only be excellent ‘cops’. They will need a European team spirit. That means that they are willing to work with people from other cul­tures and traditions, and can also explain the idiosyncrasies of their own legal system to people from other backgrounds. This is a matter which depends completely on the goodwill of the different governments. By choosing the wrong people or giving them strict orders, un­willing governments dispose of an easy and subtle way of sabotaging Europol. The director should therefore have a say in personnel policies and have the possibility to remove such ‘submarines’. The biggest threat however lies in the police culture of the national investigators. They are by nature suspicious and jealous of the information they control. Not without reason, for if such information ends up in the wrong hands, it can spoil months or years of expensive in­vestigations and endanger the lives of informers, witnesses and officers. That is why, as we pointed out, individual crime fighters rely on a so-called ‘old boys network’ of personal friends and acquaintances in other countries. In sensitive matters they prefer to work with someone they know they can trust (because he is a personal friend or because he has been carefully selected by a liaison-officer for instance), rather than using the official channels (where you do not know whom you are dealing with and who will have access to the infor­mation). They know that they will loose their sources if they reveal them to outsiders. Many investigators stress that they did not ask for Europol, which they – not without reason – per­ceive as a political construction for something that could have been realised within the Inter­pol structure. As Europol’s output will depend very much on the quality of the input, national police forces will have to be convinced of the need to be more efficient and create a system more re­liable than informal contacts. Even then, it remains doubtful whether it will receive a lot of sensitive tactical intelligence. The pooling of intelligence for analysis on a European level will probably be the area in which Europol can really bring some added value. 7.3. No Prima Donna As we pointed out before Europol should by no means start investigations independent of na­tional law enforcement or arrogantly take matters out of their hands. On the contrary, its role should be one of some kind of ‘supportive leadership’. The German proposal to conceive Europol as a European Federal Bureau of Investigation was a tactical error. It concentrated on the FBI as we know it, forgetting how the FBI grew historically. We have shown how the original FBI was just a minor agency, conceived to in­vestigate white collar crimes in the undeniably federal matter of ‘competition’. Federal drug enforcement was



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initially set up in furtherance of the federations customs jurisdiction. The politically controversial Europol, might serve as a lightening rod. In the meanwhile, within the communitarian first pillar investigation of competition, EC-fraud, crimes by EC-bureau­crats in the performance of their functions and other forms of economic crime could result in the creation of really ‘federal investigative agencies’. They will be ‘grey bureaucrats’, not high profile gun-toting Eurocops. It seems therefore that the UCLAF (the Commissions agency co-ordinating and supporting the member state initiatives against EC-fraud) has more potential for becoming an FBI than Europol.182 The Community should of course make sure it does use its potential for democratic control and clear accountability structures. As ‘Com­munity’ and ‘Union’ (conventional) agencies keep expanding, they will inevitably end up competing or overlapping. In the US we have seen that in the long run the pressure for a fur­ther reshuffle and integration will become impossible to resist. It might not be a bad (long­term) idea to turn Europol into a Directorate of Central Law Enforcement in the future. 7.4. The Director Our study of the American experience should make us aware of the key-role the director of the agency should play. It should be someone of maximal integrity, not necessarily a police official (the current director is a BKA officer), but possibly a (former) judge or prosecutor. He (or she) should at least have some experience with criminal law enforcement as well as management. He should also be someone who is strong enough for the bureaucratic battles he will have to fight day in day out. He will have to take the flak from outside critics while trying to build a sense of mission within his team. He will be the first to guarantee that the Eurocops do not step out of line. As we noted before, in the first years of an agency’s exist­ence the figure of its director is crucial. The European habit of fearing strong leaders within the EU-bureaucracy and of selecting colourless compromise figures for key-jobs could be detrimental to Europol. The American experience taught us to limit his tenure by all means. It will be interesting to see whether the ‘Conventional’ regime will give the general public an idea of what is happening behind Europol walls, without endangering the operations.

8. Conclusion In this article we have tried to illustrate that the experiences in the US can be of interest for the integration of European law enforcement. We have seen that 182  The inclusion of (potentially) communitarian matters like customs and international fraud in Art. K. reflects that the governments have serious doubts about further ‘communitarization’ of these matters.

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drug enforcement has played a key role in the evolution of law enforcement in the last three decades, both in the States and in Europe. The integration and harmonization of European law and law enforce­ment to a great extent constituted a form of Americanization. American experience has taught us that after the proliferation of numerous competing agencies within a bureaucracy, that bureaucracy can be reformed, but only with a lot of difficulty. The integration and rationalization of the different agencies can not be realised overnight and entails costs, not only finan­cial, but also in efficiency and bureaucratic spirit. A step by step integration through minor interventions is usually a better way. The 1993 reshuffle of US federal drug enforcement should be seen as such a step towards the ultimate merger of DEA and FBI and an overall re­organization of law enforcement. The result would probably be a (temporary) slowdown of the drug effort. We believe that would be a positive evolution, because the over aggressive American ‘war on drugs’ is doing more damage than good. Our look at the US also made us aware of the importance of a system of checks and bal­ances and the dangers if such a system does not exist. Europe should make sure that such guarantees are in place on a Union level. Meanwhile, it should avoid a proliferation of bure­aucratic agencies and subdivisions which would be detrimental to efficiency, accountability and transparency. The example of the American federal model, both positive and negative, can guide European federalism. Such federalism and the organizational shape of the federal bureaucracy are, as we saw in the US, an ongoing process, not a still life. Though Europol is unlikely to become a European FBI, it might evolve into a very import­ant asset in the fight against international crime if it can win the confidence of national police forces. Probably its strategic analysis will be more important than the real operational sup­port. That could nevertheless change as time goes by. Like any law enforcement, Europol’s agents will be shooting at a moving target and the agency’s tasks and operations will evolve. It was a wise move not to make drug trafficking its only mission. Making drug trafficking its principal mission, would be a mistake. That would bring the new agency in to a political minefield and make it impossible for the agency to build a solid reputation, a pre-condition for decent co-operation with national authorities. In addition, a pan-European institute de­veloping superior law enforcement technology should be connected to Europol. Europol is politically too explosive to become a European FBI. We think that there is more potential for the development of a ‘federal investigation in the first pillar’. In decades to come we might therefore be confronted with numerous bureaucratic reshuffles like the American ones we described. The conclusion could be: merge, but proceed with caution. A step by step approach is usually the only way to avoid short circuits.

Towards an Independent European Agency to Fight Fraud and Corruption in the EU? John Vervaele Professor of Economic and Financial Criminal Law, University of Utrecht, the Netherlands Professor at the College of Europe, Bruges, Belgium

1. Fraud And Corruption in the Case of the Direct Provision of Subsidies by the European Commission At the beginning of 1999, the political barometer in the European institutions was pointing distinctly towards stormy weather. Because of the discontent concerning the European Commission’s anti-fraud policy the European Parliament had not been able to discharge its 1996 budget.1 Moreover, the Board of Commissioners had received a stern warning in the form of a motion of no-confidence being tabled in Parliament.2 Commissioners Cresson and Marin, in particular, were on the receiving end in this respect. The Commission survived the vote of confidence, but emerged from the fray with its wings severely clipped as a result of the struggle and the many votes cast against it. Parliament had brandished its teeth, but it still did not have sufficient courage to be also able to bite. It had to satisfy itself with a ‘Committee of Independent Experts’3 which, during the first phase, had to report on the way in which the Commission’s leadership was dealing with internal fraud, maladministration and nepotism. The Committee was charged with the task of holding the EC Commissioners’ individual and collective responsibility up against the light. In a second report the administrative culture, the procedures and the practices within the European Commission would be 1  For the point-by-point criticism by the European Parliament’s Commission or Budgetary Control, see Resolution A40097/98. 2  Article 24 EC Treaty. 3  This Committee of independent experts consists of the Chairman, A. Middelhoek (former Chairman of the European Court of Auditors), I.-B. Ahlenius (Auditor-General of the Swedish Court of Auditors), J.A. Carillo Salcedo (former member of the European Court of Human Rights), P. Lelong (Chairman of the French Court of Auditors) and W. van Gerven (Professor of Law and former Advocate General at the European Court of Justice).

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placed firmly under the microscope. In this report, which is expected to be published in September of this year, the responsibility of the leadership (top officials and members of the Commissioners’ cabinets) will be considered. The first report,4 published 15 March 1999, contains a detailed analysis of a number of long-running fraud dossiers and it investigates the accusations of nepotism with regard to six Commissioners. Only Commissioner Cresson was held to be responsible for unacceptable favouritism. From an analysis of the fraud dossiers5 and the internal fight against fraud, the Committee of Independent Experts has nevertheless concluded that there is indeed a question of maladministration, obstruction in combating fraud and a lack of political responsibility on the part of the whole Board of Commissioners. As a result of this scathing judgement the European Commission took the honourable way out and resigned en masse. This deep political crisis as a result of accusations of fraud, corruption, mismanagement and nepotism gives rise to many questions. Is it the problem that fraud is much more serious now than in the past? Have the internal control mechanisms, such as the internal financial control exercised by the Directorate-General of Financial Control and the fraud inquiries carried out by the Commission’s anti-fraud unit (UCLAF),6 been found to be wanting or have they been sabotaged in their work? Has the external control exercised over the European Commission by the European Court of Auditors and by the European Parliament’s Committee on Budgetary Control7 not worked? In any case, from the report by the Committee of Independent Experts it would seem that cases of fraud, corruption and nepotism within the European institutions is not a new phenomenon. A number of the dossiers investigated have their origin in the previous Commission, under the leadership of Delors. The substantial increase in direct subsidies which are directly paid out by the Commission also dates back to the Delors period. The fraud dossiers investigated by the Committee of Independent Experts were not discovered by the Committee itself – the Committee also did not have any investigative authority. In all the fraud cases investigation was carried out by the Directorate-General of Financial Control and by UCLAF, and in a number of cases also by the European Court of Auditors. From the report it would also seem that the European Parliament’s Committee on Budgetary Control experienced the greatest difficulty in obtaining information and that the investigation by UCLAF was not always linked to the This report is available in its entirety on the European Parliament’s website. The Committee has concerned itself with the following dossiers: the tourism service, the MED programmes (aid programmes for the Mediterranean region), ECHO (programme for emergency humanitarian aid), the Leonardo da Vinci programme (permanent training), and the Safety Bureau (programme for nuclear safety). 6  An acronym based on the French title: ‘Unité de Coordination de la Lutte Anti-Fraude’. 7  These are also the competent bodies for receiving complaints from officials. 4  5 



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necessary conclusions. Disciplinary sanctions came too late and the sanctions themselves were negligible. The involvement of national criminal law authorities was also somewhat scant. The Annual Reports produced by the European Court of Auditors8 and by UCLAF9 have for many years highlighted an unremitting flow of instances of fraud. The vast majority of the fraud takes place in the Member States themselves. This is not so very strange considering the fact that the revenues of the EU (customs duties, a percentage of the VAT levied and a percentage of the GNP) amount to some 100 billion euros annually and this is collected by the customs authorities and the inland revenue services in the Member States. The Member States are also responsible for more than 80% of all EU expenditure (mainly agricultural and structural funds subsidies).10 The Member States are therefore responsible for the financial management and for the enforcement of these EU revenues and expenditure. Around 12%11 of the EU expenditure is intended for direct subsidising by the Commission,12 therefore without the intervention of the Member States. That a great deal can go wrong in the public tendering or granting of subsidies13 for the implementation of the programmes, including fraud and corruption at the Commission itself, makes salient reading in the damning report by the European Court of Auditors on the MED aid programmes for the Mediterranean region.14 It is also striking that the Commission is completely ill-equipped to be able to perform its duties, which in turn leads to the employment of external services15 without any efficient control being attached thereto. 8  The European Court of Auditors does not only investigate cases of fraud, but also the organisational structure and the fraud policy in the Member States and at the European institutions. In 1997 the European Court of Auditors instigated an investigation into the fight against fraud within the European Commission, namely UCLAF. See special report 8/98 by the European Court of Auditors, Pb 1998, C 230. 9  See for the latest versions: The Fight against Fraud, Annual Report 1997, Office for Official Publications of the EC, ISBN 92-828-3766-1 and The Fight against Fraud. Work Programme 1998/1999, Office for Official Publications of the EC, ISBN 92-828-4104-9. 10  D. Comijs, Europese structuurfondsen. Uitvoering en handhaving in Nederland (Deventer 1998). 11  The remaining 4% are earmarked for financing personnel and equipment. 12  The ECHO programme for emergency humanitarian aid and the programmes for aid in the Mediterranean region (MED), in Eastern Europe and in the former Soviet Union (TACIS, PHARE) and for Bosnia Herzegovina are examples thereof. See on the PHARE programme special report 3/97 by the European Court of Auditors, Pb 1997, C 175. 13  S. White, Protection of the Financial Interests of the European Communities: The Fight against Fraud and Corruption (Deventer 1998). 14  Special report 1/96 by the European Court of Auditors on the following Mediterranean programmes: MED URBS, MED CAMPUS, MED INVEST and MED MEDIA, Pb 1997, C 240 and the report by the European Parliament’s Commission on Budgetary Control on the MED programmes, Rapporteur J.M. Fabra Valles, 4 July 1997 PE 221.924/def. 15  The private technical assistance offices (BATs) are often in charge of complete programmes and in many fraud dossiers they have preferential relationships with top officials and cabinets of Commissioners. The company Agenor was responsible for the Leonardo da Vinci programme for permanent professional training, with a budget of 700 million Euros for the years 1995–1998

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An extensive case of fraud was thereby discovered in the Commission’s tourism service in 1994.16 Those involved had systematically granted subsidy contracts to companies in which they themselves, or members of their families, had business interests. In the implementation of the contracts a considerable amount of fiddling had taken place and, in the case of the contractual obligations, little was seen in return. This case led to a preliminary inquiry17 by, among others, the Belgian judicial authorities. The Belgian authorities also received a dossier concerning fraud in the granting of a contract to Group 4 Security Services for the protection of EC buildings. The Committee of Independent Experts’ report contains other examples in the field of emergency humanitarian aid (ECHO) and in protecting nuclear power stations in the former Soviet Union. At this moment in time around 25 European officials are currently being investigated. Because of discontent concerning this situation, the European Court of Auditors steadfastly refuses to declare its vote of confidence. The Commission has also had difficulty for several years in being granted the necessary acquittance by the Committee on Budgetary Control for the implementation of its budgets. Still, the political high tension at the beginning of 1999 was extraordinary. For such a situation to occur, there were both Community and national reasons which were of a political as well as a legal nature. At the Community level, because of the tabling of a motion of no-confidence against Commissioners Cresson and Marin, among other things as a result of the ECHO dossier,18 the concept of individual political responsibility was introduced.19 Political factors such as the forthcoming European elections, the political change of power in Germany, the fact that the Christian Democrats had been consigned to the opposition benches in almost all Member States and the debate on the financing of the EU also play a role in this. A great deal of attention has been devoted to these points in the media. What has nevertheless remained underexposed is the duel which has been under the responsibility of Commissioner Cresson, and thereby became much talked about as a result of an investigation by the Directorate-General of Financial Control and UCLAF. Whether punishable offences had been discovered is unclear. That there had been cases of structural maladministration, nepotism and ample remuneration is undisputed. Under pressure, two Agenor directors stood down (see Agence Europe, 21 January 1999, p. 12), but the Commissioners have still not taken any action. In the meantime N. Maes (Radical Fraction, EP) has laid a complaint with the Public Prosecutions Department in Brussels (Agence Europe, 9 January 1999). 16  Special report 3/96 by the European Court of Auditors, Pb 1997, C 17. 17  Because of the appeal by G. Tzoanos to annul the disciplinary sanctions handed down by the EC (case T-74/96) the facts were made public. 18  An investigation carried out by the European Court of Auditors and by UCLAF uncovered hard evidence of financial mismanagement as well as punishable acts having been committed in the Union’s programme for emergency humanitarian aid (ECHO/Luxembourg). Luxembourg’s judicial authorities are currently investigating the matter and, in the meantime, a high-ranking European official has been suspended as a disciplinary measure. 19  Article 24 EC Treaty also does not contain such a measure.



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taking place between the Commission and Parliament concerning the position of the UCLAF anti-fraud unit. UCLAF, in its role as the internal supervisor20 at the Commission, has brought to light a number of important fraud cases. UCLAF is a task force within the Commission’s Secretariat-General, but it lacks any form of autonomy and independence which regularly leads to frictions with the Commissioners. In 1998, Parliament expressly sought a new organisation to combat fraud and an amendment to the Protocol on the Privileges and Immunities of the EC as well as to the EC’s Staff Regulations. Parliament would also like to see more decisiveness by the Commission with regard to disciplinary procedures (Title VI and Appendix IX of the Staff Regulations). As it now stands, disciplinary sanctions take a long time and the Commission is obviously being burdened by ‘political dossiers’. Moreover, Parliament would like to see the removal of a number of legal obstacles which currently hinder (judicial) enforcement. UCLAF only has supervisory powers; with this lack of investigative powers the means of coercion are thereby limited. The national judicial authorities should therefore be called upon in this respect. Alongside the question of whether these national judicial authorities have jurisdiction21 to act like that, problems are also posed at the Community level. The Protocol on the Privileges and Immunities of the EC departs from the point of the inviolability of the EU space. For administrative and judicial means of coercion, such as the power to search and seize etc., an explicit admission from the Commission or the Court of Justice is necessary. Moreover, the officials themselves have immunity, unless the Commissioners unanimously decide to the contrary. In a number of dossiers the Commission has refused to do this or has taken a long time to come to such a decision.22 The question is whether the current impeding regulation (from the point of view of investigation and subsequent proceedings) as regards inviolability and immunity can be reconciled with the fact that Article 5 EC Treaty compels the Commission to render loyal assistance (support/legal assistance) to the judicial authorities and that the Court of Justice has decided that the Protocol does not derogate from Article 5.23 Likewise, the national authorities should co-operate with the requests of UCLAF/the Commission, which seems not always to be the case.24 The fact that the co-operation between the judicial authorities and 20  UCLAF possesses supervisory powers; verification, control and inspection are here used synonymously. 21  Here we are talking about acts which are punishable under national law and the European officials must be capable of being prosecuted there. The necessary penalisation of active and passive corruption by European officials has in the meantime been included in Protocol I of the Fraud Convention 1996, 1998 OJ C 11 and the Corruption Convention 1997, OJ C 195. These Third Pillar conventions are still to be ratified by the Member States. 22  Special report 8/98 by the European Court of Auditors, supra, point 3.26. 23  Case C-2/88 Imm., Zwartveld, Jur. 1990 (I-3365 and I-4405). 24  Special report 8/98 by the European Court of Auditors, supra, point 3.26.

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the Commission is not always a bed of roses is indeed quite obvious. But also UCLAF, although an internal inspection service, in a number of cases has not had access to all the information, as a result of which information could be obscured or destroyed. Finally, Article 19 of the Staff Regulations prohibits the European official, without the express permission of the Commission, from him/herself informing the judicial authorities of criminal offences.25 For UCLAF officials, and also for Commission officials who are subject to the Staff Regulations, this means permission from the body which is the subject of the complaint.26 It goes without saying that this is no guarantee for an independent and impartial investigation. Is the Commission thereby less strict concerning internal fraud and corruption than it is as regards fraud and corruption in the Member States? Is this a matter of politics with two different sets of weights and measures? The objective of this article is to analyse the legal background to the anti-fraud policy and to the UCLAF anti-fraud unit and to place these against the political conflict concerning the responsibility of the Commission.

2. The European Commission’s Anti-Fraud Policy Since the 1960s, the European Commission has been alert to the dangers of fraud and corruption, also within the European institutions themselves. However, its attempts to legally revise the EC Treaty along these lines became stranded in the Council of Ministers.27 From 1970 onwards, Community supervisory competences outside the field of European competition28 have been developed in sectoral control regulations. In various Directorates-General inspection units have been set up to enforce substantive standards29 or to combat EU fraud. They have supervisory powers in the Member States (external inspection), as regards the administrative authorities and often also as regards the economic operators. The inspections are carried out in co-operation with and under the authority of national supervisory bodies and/or investigative authorities. With this sectoral approach an integrated policy as regards Euro-inspection and/ or anti-fraud units is lacking.30 Also due to the pressure from Parliament and 25  EC report entitled Sound Financial Management and Administration. Improving Action against Incompetence, Financial Irregularities, Fraud and Corruption, SEC (97) 2198, p. 12: ‘The decision to bring a court action must be taken jointly by the President and the Commissioner responsible for personnel matters after the whole case has been considered’. 26  The national judicial authorities can, if they are competent to do so, implement an investigation independently, but they will then run into the concepts of inviolability and immunity. 27  See J.A.E. Vervaele, Fraud against the Community (Deventer 1992), p. 85 et seq. 28  In the case of European competition the Commission, on the basis of Article 87 EC Treaty, also has the authority to impose administrative sanctions. 29  Such as the standards relating to fishery quotas, hygiene in slaughter-houses, etc. 30  J.A.E. Vervaele, ‘Community Regulation and Operational Application of Investigative Powers’, in Vervaele (ed.), Transnational Enforcement of the Financial Interests of the European



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public opinion, in 1987 the Commission published a 42-point report on an integrated approach to combating fraud31 and in 1988 it established UCLAF. In 1995, the anti-fraud units belonging to agriculture (DG VI) and customs (DG XXI) became integrated, which resulted in UCLAF growing into an organisation with 150 staff members with a clear strategy of combating fraud. The internal inspection at the Commission is thereby a noticeably underexposed aspect thereof. Alongside the operational supervisory powers, UCLAF also has other competences which are based on the conventional powers of the Commission as regards combating fraud. UCLAF has an important role to play in the legislative process due to the fact that the Commission has a legislated right of initiative. On the basis of the Commission’s competence concerning implementation and supervision (Arts. 154 –155), UCLAF has a supportive role in enforcement. Its task consists of setting up automated databases which are fed with data from the Commission and from the Member States and based upon which specific analyses of fraud patterns, modus operandi, etc., are carried out.32 Finally, based on the Commission’s power to co-ordinate enforcement (Art. 209a), UCLAF has a co-ordinating function. This concerns the organisation of training seminars and work meetings up to and including attuning transnational enforcement actions by national administrative and judicial authorities. The whole range of competences can also be traced back to UCLAF’s organisational structure. Alongside the policy unit, which is also responsible for legislation and cooperation,33 there are two units for enforcement support34 and five inspection units, namely responsible for structural and direct expenditure,35 expenditure within the framework of foreign policy, the trade in agricultural products, market planning in the agricultural sector and own resources (customs duties, VAT).

3. A Re-evaluation of the European Commission’s Anti-Fraud Policy 3.1. External Inspection by UCLAF After the internal reorganisation within the Commission, in 1996 UCLAF was given the power – on the basis of Regulation 2185/9636 – to carry out investigations Union (Antwerp-Groningen 1999). J.A.E. Vervaele, ‘Transnational Cooperation of Enforcement Authorities in the Community Area’, in Vervaele (ed.), Compliance and Enforcement of European Community Law (The Hague/London 1999). 31  Com(87) final. 32  This supportive, but non-operational, task can be compared to Europol’s function as contained in the current Europol Convention, 1995 OJ C 316 which entered into force on 1 October 1998. 33  The criminal law expertise and liaison cell forms a part thereof. See infra, under 3.2. 34  An apart customs intelligence cell is linked thereto. 35  An apart anti-corruption cell has been added. See infra, under 3.3. 36  Regulation 2185/96, Pb 1996, L 292.

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independently in the Member States. The Regulation provides minimum horizontal regulation. Horizontal means that the provisions apply to all EC policy areas in as far as they relate to EC finances.37 Minimum means that the current or future provisions of sectoral regulations which contain broader competences38 will be given priority. Article 2 describes the Commission’s investigation mandate: 1. in the case of serious transnational irregularities or whenever economic operators from different countries are involved, or 2. at the request of the Member State in question, or 3. whenever the situation in a Member State renders it necessary in an exceptional case to intensify control, with a view to fighting fraud more effectively and to attaining an equivalent level of protection within the Community. The mandate relates not only to cases of transnational fraud, but also to cases of serious fraud and the Commission can, in exceptional cases, carry out inspections in order to rectify the enforcement failure of a particular Member State (the principle of pro-active assimilation). Within this mandate UCLAF can independently, under its own authority and under the responsibility of the Commission, carry out external inspections whereby teams can be assembled which may include inspectors from the country in question and/ or from other Member States. For the first time, therefore, we are confronted with independent powers of enforcement for Euro-inspectors in the field of indirect administration, powers which are comparable to those provided in the field of competition in Regulation 17/62.39 The regulation goes much further in its definition of mandate, powers and legal consequences than do the sectoral regulations. Article 7 thereby regulates the powers of the Euro-inspectors and in that respect also the methods for the gathering of evidence. Nevertheless, many aspects remain unregulated and are simply left to the ‘rules of procedure laid down by the law of the Member States concerned’ (Art. 6(1)). The problem with this is that the national procedural rules contained in administrative and criminal law have often not yet been prepared for Community situations, let alone for the operational investigative powers of the Euro-inspectors.40 It may be 37  Because this regulation is an elaboration of Article 8 of the Fraud Regulation 2988/95, Pb 1995, L 312, VAT is hereby excluded. The Member States are very keen on fiscal autonomy. This is in sharp contrast to increasing transnational VAT anti-competition fraud. See J.A.E. Vervaele (ed.), La lutte contra la fraude à la TVA dans l’Union Européenne (Antwerp-Apeldoorn 1996), and the special report by the European Court of Auditors on the protection of the EU’s financial interests in the field of VAT, Pb C 356. 38  An example may be found in Article 6 Agriculture Control Regulation 595/91, Pb 1991, L 67, whereby Euro-inspectors may, in certain circumstances, take part in an investigation by national authorities. 39  A major difference, however, is that in the case of competition the powers have as their objective the imposition of sanctions by the Commission, which is not the case here, because any evidence of a transgression will lead to the imposition of national sanctions. 40  Nevertheless, points and sources of inspiration can be found in Dutch law by way of the General Administrative Law Act, the Criminal Code and in special Acts such as the Act on the Implementation of EC Competition Regulations, Staatscourant, 1997, 129.



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supposed that the Member States still have great difficulties with the notion of autonomous, operational inspections by a supra-national enforcement agency. Politico-economic interests and/or the desire to conceal one’s own enforcement deficiencies obviously play a role in this respect. Some Member States thereby interpret the provision in Article 5 that inspections may be carried out whenever ‘where there are reasons to think that irregularities have been committed’ as meaning that there must be a question of a criminal law suspicion, irrespective of the fact that UCLAF, after all, only has supervisory competences. 3.2. UCLAF’s Co-ordination Function in the European Legal ‘Space’ In cases of serious and/or transnational EU fraud, UCLAF co-ordinates the efforts of the national enforcement agencies. This co-ordination can take many forms. In the case of transnational fraud there are many points of departure (persons, places, objects) and several legal systems involved in the case. The questions of whoever, whenever, wherever and how such acts are investigated and/or proceeded against can be of decisive importance for a successful approach. Furthermore, a knowledge of the various national systems and the actors involved can be of crucial importance in order to determine on which basis information may be exchanged (mutual administrative assistance, judicial co-operation in criminal cases), when letters rogatory may be executed, when evidence may be obtained and in which cases may such evidence by used, when jurisdiction may be guaranteed, etc. This means that the actions of the administrative, police and judicial authorities are co-ordinated by UCLAF. Whenever alarming structural fraud patterns develop, UCLAF can also set up special task-forces, such as in the case of cigarette smuggling, for example.41 To put it succinctly, UCLAF plays a substantial and proactive role in the administrative and judicial investigation, without itself being able to instigate judicial investigative actions. An interesting factor, as far as this task is concerned, is that UCLAF can have at its disposal not only Community specialists, but also national specialists who may be detached to it. Officials from the national administrations and inspection authorities, as well as members of the Public Prosecutions Departments and the judiciary, may be detached to UCLAF for a determined length of time. Although they may not be appointed as a specific legal authority, they nevertheless contribute with their

See the interesting report by the EP’s Committee of Inquiry into the Community Transit System (four parts), PE 220.895/DEF (1997). Not only in the case of the illegal trade in cigarettes may profits be made which could compete with the illegal trade in drugs, but the same may be true for alcohol and petroleum products, while the risks involved in these activities (control, sanctions) are significantly less than in the illegal trade in drugs. 41 

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expertise and their own network. The judiciary are active in UCLAF’s criminal law expertise and liaison cell.42 3.3. Internal Inspection by UCLAF In 1997, the Commission for the first time unfurled a specific strategy relating to internal fraud and corruption. Also in 1997, the European Parliament’s Commission on Budgetary Control requested Rapporteur Bösch to produce a report on the subject of UCLAF’s independence, role and status. The Commission Report43 forms part of the P&O policy (MAP 2000) within the framework of the Sound Financial Management (SEM 2000) operation. At this point in time the internal control directed towards maladministration, fraud and corruption lies in the hands of three horizontal control services: DG XX for financial auditing, the Inspectorate-General (IGS)44 and UCLAF. UCLAF may instigate an internal investigation on the basis of: reports45 from administrative and/ or judicial authorities in the Member States; Community reports from other services or institutions; indications based on information contained in the press and information received from informants; and its own information. The results of an internal UCLAF inquiry may lead to disciplinary action (by the Commission) against an official, reclaiming or reassessing the subsidies in question (by the Commission or by the Member State), administrative law action (by the Member State) or criminal law action (by the Member State). In the Commission Report four points of action are highlighted: strengthening UCLAF’s position, strengthening the internal investigation, improvements as regards disciplinary procedures and expediting the removal of the immunity of officials. Moreover, the Commission has announced general measures concerning the procedures for subsidies and public tendering and as regards the administrative organisation of the Commission. As far as the power of internal inspection is concerned, until 1996 there was no regulation at all. In April 1996 the Secretariat-General, as a result of the corruption dossier relating to the tourism service, issued an instruction granting UCLAF the competence – subject to the agreement of the Secretary-General and the responsible Director-General – to instigate an administrative investigation, to seize documents and to question officials. The 1997 Commission Report recognised the necessity for a formal and comprehensive regulation.46 In May 42  This cell was set up so as to implement the recommendation of the EP’s Committee of Inquiry into the Community Transit System. 43  SEC(97) 2198, supra. 44  The IGS was set up in July 1991 and is under the authority of the Chairman of the Commission. 45  The obligatory nature of the reports is prescribed in the sectoral regulations. 46  SEC(97) 2198, supra, p. 8: ‘These instructions represented the gradual putting into place of a set of administrative procedures designed to facilitate internal Commission inquiries carried out



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1998, the Commission decided to convert UCLAF into a Task Force within the Secretariat-General. In July 1998, the Commission issued a Decision47 concerning the investigative competences of the Task Force and concerning the relations between the Task Force and the criminal law authorities in the Member States. The regulation applies to UCLAF’s internal and external investigative powers. As far as external competences are concerned reference should namely be made to the UCLAF Regulation 2185/96,48 to the Fraud Regulation 2988/9549 and to the various sectoral regulations. The regulation limits itself to supervision because judicial investigation falls within the exclusive competence of the judicial authorities in the Member States. The regulation is also not concerned with sanctioning because the competence of disciplinary sanctioning lies with the Commission50 while the competence of administrative law and criminal law sanctioning lies with the Member States. The supervisory powers are goal-orientated, namely the protection of the financial interests of the EU.51 The following are understood to fall hereunder: irregularities,52 fraud,53 active and passive corruption54 and all other activities55 which may have an impact on such financial interests. UCLAF is obliged to co-operate technically and operationally in national supervision and investigation. An important renovation is that UCLAF has now become the direct contact point for the national police and judicial authorities and that UCLAF – when it has found possible punishable acts in the Commission – has the competence to, and indeed is obliged to report these acts to the national police and judicial authorities, without any further approval having to be obtained. UCLAF can also assist national authorities, upon their request. This opens up the perspectives for operational transnational co-operation. Interesting here is the regulation of the internal inquiry. The following powers of investigation are attributed to UCLAF: the power to enter premises, to demand information, the power to inspect and seize data and documents and to examine witnesses.56 by UCLAF into suspected cases of fraud and corruption … There is now a need to transform this set of instructions into a more formal and comprehensive decision of the College’. 47  Commission Decision concerning investigations carried out by the Task Force entitled Co-ordination of the Fight against Fraud, 14 July 1998; Commission Decision on Detailed Rules of Application, 2 December 1998, not published. 48  See L. Kuhl and H. Spitzer, ‘Die Verordnung (Euratom, EG) Nr. 2185/96 des Rates über die Kontrollbefugnisse der Kommission im Bereich der Betrugsbekämpfung’, EuZW (1998), pp. 37–44. 49  Pb 1995, L 312. 50  The competence rests with the Directorate-General of Personnel & Administration or with the College of Commissioners for level A1 and A2 (that is, the highest levels of the top officials). 51  Article 1 is, however, an ‘open’ competence provision, in the sense that Commissioners can extend this power to other fields. 52  See the definition in Article 1 of Regulation 2988/95, supra. 53  See the definition in Article 1 of the Fraud Convention, OJ 1995, C 316. 54  See the definition in Articles 1–3 of Protocol I to the Fraud Convention, supra. 55  Here we could have in mind, not respecting public conditions of tender. 56  Only the taking of samples and investigating means of transport are not included here.

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The powers of investigation are limited to the premises of the Commission and such competences relate to officials as well as to anyone who directly or indirectly acts on behalf of the Commission. Certain obligations also apply to such persons, such as the duty to provide information and to co-operate. The head of a particular department should be informed of the investigation beforehand. In the case of extreme urgency or necessary confidentiality this requirement may be dispensed with, on condition that the Secretary-General and the Director-General of Personnel are informed thereof. If it is necessary to embark upon investigative actions or means of coercion which belong to the competences of the judicial authorities (for example, searching a private household), and the investigation requires secrecy, then with the agreement of the Secretary-General all information relating to the official in question may be withheld. So what is the position as regards safeguarding the legal rights of the official in question? In Article 9 a number of general principles are enumerated which must be respected when conducting external and internal inquiries, and these are the principle of equality, the right to be heard and the obligation to base the investigative report on facts which have evidentiary value. Furthermore, in the section entitled ‘Guarantees attached to the rights of the individual’ two rights are given legal form: the right to be informed of the investigation beforehand,57 unless this is opposed by the confidentiality requirement; and the right to be heard before the investigation is concluded in the form of a synthesis report which is sent to the Director-General of Personnel for further action. Neither the principle of proportionality nor the right to remain silent are mentioned here. All officials also have the right to immediately inform UCLAF of any cases of fraud. The permission of their departmental head is thereby not required. Heads of department have an obligation to report. The regulation of UCLAF’s internal supervisory powers, however, contains a legal lacuna as it only applies to the Commission58 and does not offer any guarantee of independence. In October 1998 Parliament, by a wide majority, approved the Bösch Resolution on UCLAF’s independence, role and status.59 UCLAF remains a part of the Commission, but for the purposes of implementing

57  The right to be informed does not include the right to have access to the dossier. The dossier falls within the ambit of confidentiality in conformity with ‘Commission decision of 30 November 1994 on the security measures applicable to classified information produced or transmitted in connection with the activities of the EU’, C(94)3282. 58  The other institutions, including the European Parliament, have not taken any initiative in this respect. 59  Resolution A-4-0297/98, Pb C 328. The resolution is also a reaction to the European Court of Auditors’ special report 8/98, supra, which contains fierce criticism of UCLAF’s modes of operation, which is attributable to not only a lack of internal quality but also to limited capacity in its actions as a result of organisational and legal limitations.



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external and internal inspections it is suggested that it be established within60 the European institutions as an Anti-Fraud Office (OLAF).61 It has been requested that the Commission should present a proposal for a joint resolution on behalf of Parliament, the Council, the Court of Justice and the European Court of Auditors whereby OLAF would be granted supervisory powers in all the European institutions. It has also been requested that OLAF should set up a section composed of experts from the Member States’ Public Prosecutions Departments, so that legal co-operation and mutual assistance may be supported and co-ordinated. At the same time, a system for the legal control of OLAF’s activities should be provided as well as intensive co-operation with Europol. OLAF should have offices in Brussels and Luxembourg and eventually, should the need arise, in the Member States or indeed in third States. Under the resolution the number of staff employed by OLAF would be set at 300 permanent functions. In filling these places preference would be given to personnel from the administrative and criminal law enforcement authorities of the Member States. The Commission has not disregarded the strong signals emanating from Parliament and in December 1998 it submitted a proposal to the Council of Ministers for a regulation which would have as its objective the setting up of a ‘European Office for Investigating Fraud’,62 which would not detract from the competences of the Commission in the field of European finances. For this reason the Commission wants to accommodate some of the instances of the instigation of internal and external inspections with the ‘Office’, which would have its own legal personality and, institutionally speaking, would be detached from the Commission. For internal inspections the ‘Office’ would also have the right of initiative. After the completion of the internal or external inspection the case would be transferred to the Commission for further action. The intention is that all fraud committed within the First, Second and Third Pillars and within all EU institutions and/ or bodies would be covered by the regulation. The provisos herefor should still be elaborated in the Staff Regulations. In anticipation thereof, the institutions and bodies may decide on an internal decision whereby they will regulate the internal inspection powers of the ‘Office’. As far as the inflow of information is concerned, little will change because the ‘Office’ maintains the competence to set up data banks and to analyse information files. The information will still emanate, as in the past, from the Commission and from obligatory reports/ 60  The advantage of gaining independence within the European Commission is that UCLAF’s other functions are retained and that the EC Treaty does not have to be amended. 61  An acronym based on the French title: ‘Office de lutte antifraude’. 62  COM (1998) 717 final, 1 December 1998. The European Council of Heads of State and Government at its biennial summit meeting in Vienna on 10 and 11 December 1998 supported the proposal and thereby urged that a decision be taken thereon before the next summit meeting in Cologne in June 1999.

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notifications from the Member States on the basis of the respective control regulations. The outflow in the direction of the Member States will indeed change, however. Henceforth, the ‘Office’, before sending its inspection report to the Commission and without the Commission’s authorisation, will be able to inform the authorities of the Member States of the pertinent facts, if the ‘Office’ should consider this to be necessary based on the gravity of its conclusions. After receiving the inspection report the Commission may also decide to inform the competent national authorities. This proposal may be considered to be a first, because even as regards the far-reaching investigative and sanctioning powers in the field of European competition, an independent Community body has never been created. Nevertheless, as far as the proposal is concerned, at Parliament’s Commission for Budgetary Control it has fallen on stony ground.63 It was indeed felt that the ‘Office’s’ complete independence, attained by placing it outside the structures of the Commission, would considerably weaken the ‘Office’ as regards its ‘clout’ in the direction of the Member States. By means of this criticism the Commission Chairman decided upon an eight-point programme in his speech during the Parliamentary debate on no-confidence at the beginning of 1999.64 Alongside points relating to a new administrative culture and the elaboration of codes of conduct, which would also apply to Commissioners, he expressed his willingness to work towards a definitive solution to the status of UCLAF and this would be done by means of a High-Level Group,65 composed of representatives from Parliament, the Commission and the Council. They will have to reach an agreement within a short period of time which will guarantee an effective policy on fraud coupled with the independent performance of the investigative powers. In any event, they can take seriously the conclusions of the Committee of Independent Experts’ first report. In this report UCLAF’s current ambiguous statute is highlighted. According to the Committee of Independent Experts UCLAF must be given its own mission whereby on the basis of internal audits (the financial investigation by the Financial Control Directorate-General), and other sources of information, it will be able to implement inquiries relating to EC fraud and corruption in the Member States and in the European institutions. The objective of this investigation must be directed towards the gathering of evidence for a criminal law case-file. UCLAF must also act on and co-ordinate any criminal law follow-up activity.66 This means that the Committee of Experts See Agence Europe, 22 January 1999, p. 15. Speech/99/6, website europa.eu.int. 65  This high-level group, also referred to as the Schröder Group, consists of a Chairman from the Council (Schröder), the Chairman of the European Parliament’s Commission on Budgetary Control (Theato), and Commissioners Van Miert, Monti and Gradin from the European Commission. 66  Point 9.4.18 of the unit’s report recommending reform. 63  64 



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has clearly chosen for an expansion of UCLAF into a special inspection service. Whether this will mean that UCLAF should be given judicial investigative powers is not touched upon, however. Within the High-Level Group diligent work has been taking place on broad inter-institutional support. The result is that on 31 May 1999, the legislation replacing UCLAF with OLAF was published in the Official Journal.67 In Regulations 1073/1999 (EC) and 1074/1999 (Euratom) the competences of OLAF are defined. In the Commission’s Decision 1999/352 of 28 April 1999, OLAF was set up as an office within the Commission. Finally, in the Inter-institutional Agreement of the European Parliament, the Council and the European Commission, a framework model is provided in relation to the necessary conditions and provisos for undertaking internal inquiries. To briefly sum up, it can be stated that all UCLAF competences have been transferred to OLAF. OLAF remains an integral part of the European Commission, but the power to conduct internal and external inquiries is so arranged that there is indeed a question of independence in relation to the institutions, bodies, agencies, including the European Commission, which are to be controlled. A striking feature is that the substantive competence of OLAF is so widely defined. This concerns two main essentials: 1. the protection of the financial interests (fraud, corruption, etc.); 2. violations of the law relating to public officials: serious acts which, in relation to professional activities, amount to a disciplinary and/ or criminal law infringement. In the considerations of the new instruments, for instance in the Inter-institutional Agreement, the definition was broadened into ‘all activities relating to the need to safeguard Community interests against irregular conduct liable to give rise to administrative or criminal proceedings’. The Director of OLAF will be appointed by the Commission, after consultation with the European Parliament and the Council. He/she will autonomously decide on the commencement, exercise and termination of inquiries. If the Director determines that a decision of the European Commission affects his/ her independence, then he/she has the possibility of an appeal to the Court of Justice. The Director also has the autonomous competence to forward the dossier to the national judicial authorities when there are indications that punishable acts have been committed. OLAF also becomes the point of contact for the national police and judicial authorities. For the purpose of conducting internal inquiries OLAF possesses administrative supervisory powers. The institutions, bodies and agencies and their officials have obligations to provide information and to co-operate which are detailed in the Inter-institutional Agreement. It should here be noted that the European Central Bank has subsequently made it known that it is not planning to sign the Agreement. 67 

The full text is included in L 136.

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OLAF also has a Supervisory Committee consisting of five prominent experts in the field. The Committee has an administrative supervisory function as regards OLAF’s authority to conduct inquiries and it advises the Director. With this regulation a very important step has been taken towards a fullyfledged European anti-fraud agency. Not all problems have been dispensed with, however. As regards certain points the Protocol on the privileges and immunities and the Staff regulations need adjustment so that they are in accordance with the new regulation. Secondly, a striking feature is that the new regulation limits itself to regulating the independence of OLAF’s supervisory powers. Reference is made to co-operation with the national police and judicial authorities and to the exchange of dossiers, but there is no mention of attributing any judicial investigative powers of OLAF. Just as scanty is the regulation of whether and how OLAF may operate within the framework of a national judicial investigation. Can OLAF participate in letters rogatory? Just as unclear is how far do OLAF’s powers extend if a national judicial investigation is underway. Does OLAF have access to the data? Does OLAF have the opportunity to carry out an investigation if the national judicial authorities have imposed orders of seizure or placing under seal? To put it succinctly, a number of questions remain which concentrate on the relationship between a European enforcement agency with supervisory powers and the national criminal law authorities.

4. Towards Transnational Co-operation and Agency Formation in the Fight against Fraud and Corruption in the EU? The Bösch Resolution clearly chooses a framework for a European criminal law ‘space’.68 OLAF should be extended into an agency with far-reaching supervisory and judicial investigative powers, both in the Member States and third countries as well as at the European institutions themselves. For the necessary judicial control the Public Prosecutions Department in question should receive a continuation at the EU (the European Public Prosecutor’s Office). This last-mentioned point is also a central issue in the Corpus Juris project,69 whereby a Committee of criminal law experts, under the guidance of M. Delmas-Marty and upon the assignment of the European Parliament and the European Commission,70 have proposed that provisions of criminal (procedural) law should be harmonised with a view to protecting the financial interests of the EU. In the Corpus Juris

J.A.E. Vervaele, ‘Transnational cooperation of enforcement authorities in the Community area’, in Vervaele et al. (eds.), Compliance and Enforcement of European Community Law (Deventer 1999). 69  Corpus Juris, Intersentia Rechtswetenschappen (Antwerp/Groningen 1998). 70  The assignment from the European Commission emanated from the Directorate-General of Financial Control and from UCLAF. 68 



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follow-up investigation71 the impact of the Corpus Juris on the constitutional and criminal law regulations of the Member States was studied and attention was especially given to the effect of UCLAF’s competences in the judicial systems of the Member States.72 Parliament is well aware that the criminal law aspects of the Bösch Resolution and of the Corpus Juris cannot be realised at very short notice. The Commission’s proposal to set up an independent ‘European Office for Investigating Fraud’73 does not contain a single indication as to the judicial or quasi-judicial powers for UCLAF. The Commission is already aware that at this moment in time it has no support at the Council of Ministers to give OLAF judicial investigative powers. The Council does have an eye, however, for a European criminal law approach to tackling fraud and corruption, but sees this as rather the exclusive domain of inter-governmental co-operation within the framework of the Third Pillar.74 The Council resolution quite rightly points to the Treaty of Amsterdam. By means of Article 280, which replaced Article 209a, the Commission is given complete legal authority for legislative anti-fraud initiatives which no longer require unanimity. The central question is whether under the banner of vertical co-operation between the Commission and the Member States within the First Pillar, the judicial co-operation can also be regulated75 and whether tasks can here be assigned to OLAF in this respect. Furthermore, in Article 61 a European ‘space’ for freedom, safety and justice in daily life is called for, whereby aspects of co-operation from the First and Third Pillars are integrated. The Third Pillar is also much more geared towards police and criminal law co-operation and towards the harmonisation of criminal law. It is important that the Commission is also given the right of initiative and that the possibilities relating to operational co-operation, to the services of the Member States, to Europol and to OLAF are increased within the framework of the Third Pillar.76 To put it succinctly, because of the fact that the Treaty of Amsterdam has retained the pillar structure, the foundation is hereby laid for European operational transnational co-operation in the fight against transnational crime.

71  The investigation has been carried out during the course of 1998–1999 by the same Committee of criminal law experts, supplemented by country specialists. The investigation has been led by M. Delmas-Marty and J.A.E. Vervaele. 72  The Inter-parliamentary Conference (European Parliament – national parliaments) of 9–10 November 1998 was devoted to international crime and the Corpus Juris project. 73  COM (1998) 717 final, 1 December 1998. 74  J.A.E. Vervaele, ‘Law Enforcement in Community Law within the first and third pillar: do they stand alone?’, The Finnish Yearbook of International Law (1996), Volume VII, pp. 353–368. 75  Article 280 EC Treaty of Amsterdam indeed reports that ‘these measures shall not concern the application of national criminal law or the national administration of justice’. 76  An example thereof was also to be found in Article 7 of Protocol II to the Fraud Convention, OJ 1997, C 221.

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OLAF77 and Europol78 have already announced the (criminal law) protection of the euro. The Commission, in an announcement to the Council, Parliament and the European Central Bank, has already drawn up a blueprint for the protection of the euro and for combating currency counterfeiting.79 Let us hope that national and European politicians also make use of the legal possibilities, not so much as to bait an institutional fight regarding a European agency, but rather to attain workable structures for transnational enforcement in Europe. After all, surely we do not want those who are concerned with the euro to have to fight for it.

77  78  79 

See the Work Programme 1998/1999, supra. Europol Work Programme 1999, not published. Com (1998) 474 final.

4. The Establishment of a European Public Prosecution Service

A European Public Prosecution Service: Comments on the Green Paper Cyrille Fijnaut a and Marc Groenhuijsenb a)

Institute of Criminal Law, KU Leuven, Belgium, and Tilburg University, the Netherlands b) Tilburg University, the Netherlands

1. Introductory Remarks On the occasion of the Intergovernmental Conference held in Nice in December 2000 the European Commission published a Communication on criminal-law protection of the Community’s financial interests, in which it advocated the establishment of a European Public Prosecution Service (PPS).1 As is evident from the conclusions of the conference, the European Council did not give its opinion on this proposal, in either a positive or a negative sense. Without much ado it referred the matter back to the Commission with a request to examine the practical implications in more depth. The outcome of this is the ‘Green Paper on criminal-law protection of the financial interests of the Community and the establishment of a European Prosecutor’, which was published on 11 December 2001 and, at the invitation of the Commission, was to be commented on by the Member States and by experts and other interested parties before 1 June.2 Partly 1  The Commission published this contribution on 29 Sepember 2000 (COM(2000) 608 final). Commission documents issued in Dutch usually refer to a ‘Europese officier van justitie’ (European Public Prosecutor), but this title is not actually feasible in Dutch – ‘we’ do not appoint a prosecutor’s office; the Dutch version of the Green Paper nevertheless uses the literal translation of the French term. The recent Dutch translation of the Corpus Juris rightly talks about the ‘Europees openbaar ministerie’ (European Public Prosecution Service). Cf. M. Luchtman et al., Corpus Juris 2000; strafbepalingen ter bescherming van de financiële belangen van de Europese Unie, Utrecht, Centre for Enforcement of European Law, 2001. 2  Brussels, 11 December 2001, COM (2001) 715 final. We have taken note of the response of the Dutch government to the Green Paper, which was sent to the President of the Senate of the States General on 1 May 2002 (reference 5163468/502/PV). In the meantime comments have also been formulated by Dasec, the Dutch Law Association for the study of the protection of the financial interests of the EC. Our paper focuses on the Green Paper itself and only indirectly examines the aforementioned responses to it.

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on the basis of these comments, the Commission intends to make a contribution in 2003 to the debate on the revision of the Treaties, which is currently being prepared by the European Conference chaired by Giscard d’Estaing. He recently announced, incidentally, that the balance of power between the European Union (EU) and its Member States in judicial matters will be one of the main themes of the Conference. According to the introduction, the Green Paper should respond to the scepticism that has all too often greeted the proposal by ‘explaining it in practical terms and considering the possibilities for the implementation of a solution which might rightly be seen as ambitious and innovatory’. The undertone of this Communication is therefore that the principle of a European PPS is no longer under discussion; all that now matters is the way in which it will actually be implemented. Anyone who still has questions about ‘the legitimacy of and reasons for creating a European Public Prosecutor’ is thus to some extent depicted as someone who is behind the times. We shall demonstrate below, however, that these questions are still highly legitimate. First – slightly illogical perhaps, but in accordance with the Commission’s approach – the solution put forward in this proposal will be explained. The problems to which it is intended to be a solution will then be outlined. The question of whether these problems call for this solution will subsequently be discussed, and a few of its flaws elucidated. We shall then examine some of the more fundamental issues that are under discussion in this proposal. On the one hand the Commission’s preference for the principle of mandatory prosecution of offences that jeopardize the Community’s financial interests, and on the other a certain degree of harmonization of criminal law and law of criminal procedure in the Member States, especially in the area of the admissibility of evidence gathered in any Member State.

2. The Appearance and Basis of the European PPS 2.1. What Would the PPS Look Like? In institutional terms the Commission sees it as a deconcentrated institution. The European Public Prosecutor, who would head the PPS, would be appointed by the Council acting by qualified majority, on a proposal from the Commission and with the assent of the European Parliament (EP), for a term of six years; the appointment would be non-renewable so as to safeguard the Prosecutor’s independence. To guarantee integration into the national legal systems without – still according to the Commission – upheavals for them, the European Public Prosecutor would rely on one or more Deputy Prosecutors in each Member State. These would be national officials who conduct criminal prosecutions



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in the particular Member State and therefore have the relevant experience. These Deputy Prosecutors, whose term of office would be renewable, would be subordinate to the European Public Prosecutor and would be banned from receiving any instructions from their national authorities in any matter concerning the protection of the Community’s financial interests. The European Public Prosecutor, and he alone, would be responsible for directing and coordinating investigations and prosecutions of alleged offences prejudicial to the financial interests of the Community. And just as the investigation – whenever the rights of citizens are at stake – must be reviewed by a national court, so too must the prosecution procedure take place before the national courts. A national judicial review of the investigation must, however, be recognized throughout the Community with a view to ensuring the mutual admissibility of evidence between the Member States. To enable the European PPS to operate effectively, the Commission does not think that general codification of criminal law is necessary at European level. It is of the opinion that codification in substantive and legal terms can remain limited to the proposals put forward in the Convention of 26 July 1995 and its additional protocols on the protection of the financial interests of the European Communities, which have been incorporated into the Commission’s proposal for a Directive of 23 May 2001. This proposal concerns, amongst other things, penalization of European fraud and corruption, money-laundering and membership of a criminal organization. With regard to the part of the proposal concerning criminal proceedings, the Commission puts forward the idea that not only Community institutions and officials but also national authorities must be placed under an obligation to report to the European PPS any criminal offences affecting the Community’s financial interests. It also clearly supports the introduction of a mandatory prosecution system for offences of this kind. It puts forward two arguments: firstly, so as to ensure – in principle – uniform proceedings throughout the EU and, secondly, so as to stress the independence of the European PPS through ‘the strict application of the law’. The Commission also proposes that the office of the European Public Prosecutor should remain limited in size – no larger than is necessary to operate effectively. Most of its resources must be concentrated at the level of the Deputy Prosecutors. Whereas these Deputy Prosecutors would be remunerated out of the budget of the individual Member States, any extra costs for the Member States as a result of the European PPS could be charged to the European Prosecutor’s own budget. His budget should, in turn, be charged to the general budget of the European Communities. The location of the headquarters of the European PPS must be determined in accordance with the Community’s usual procedure.

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If one examines the Communications published by the Commission since the late 1980s concerning the fight against EC fraud, it can be seen that until 1998–1999 it did not explicitly pronounce on the need for a European Public Prosecution Service.3 The suggestion to set up such a Service originates in theory from a research project – the Corpus Juris project – which has been funded by the Commission, partly under pressure from the EP. The report published by the study group in 1997 outlines for the first time the Public Prosecution Service.4 However, as indicated in the foreword to the report, the entire project was in fact based on the ideas of a senior European Commission official, Francesco de Angelis. The Commission was therefore closely involved from the outset in developing the idea to create a European PPS.5 Subsequently the idea gained the support of the Committee of Independent Experts, which in 1999 investigated the organization and practices of the Commission.6 We do not intend to discuss here why the Committee of Independent Experts and the authors of the Corpus Juris project opted for the creation of a European PPS,7 but rather why the Commission finds it so necessary. In the Green Paper (p. 12) it initially glosses over this question and refers to its Communication on countering EC fraud, published in September 2000.8 For the Commission it is as if a discussion about the need to create a Public Prosecution Service is passé and all that matters now is ‘the feasibility and the possible mechanisms’ of such a PPS, as already mentioned in the introduction. However, elsewhere in the Green Paper (p. 9 and p. 14 ff.) the Commission appears to understand that it cannot get off so easily. The arguments as to why, in its opinion, there should be a European PPS are then discussed. The fundamental position of the Commission is that in the fight against fraud affecting the financial interests of the EC there remains a ‘need for effective enforcement activities’. Why? Because for many years it has been known that 3  By way of illustration to support this conclusion, we refer to the 1994 and 1998/1999 strategy document and work programme of the Commission in this area. The strategy document does make approving reference to the support that the Commission, at the request of the EP, gave to the completion of the Corpus Juris project (p. 17). 4  M. Delmas-Marty et al., Corpus Juris (Paris 1997) p. 4. 5  See the foreword to the publication cited in footnote 5. The Dutch translation of the Corpus Juris was the work of M. Luchtman et al., op. cit. (see footnote 1). 6  Committee of Independent Experts, Second report on Reform of the Commission, Brussels, 1999, Volume II A, pp. 188–195. 7  For comments on the Corpus Juris project – which naturally provides the background to this paper to some extent – refer to C. Fijnaut, De strafrechtelijke bescherming van de financiële belangen van de Gemeenschap tegen fraude, Delikt en Delinkwent 2000, pp. 972–988. 8  COM (2000) 608 final of 29 September 2000 (see footnote 1). It should be mentioned, however, that the Commission also devotes a few lines to the European PPS in its Communication of 28 June 2000 (COM (2000) 358 final) on the fight against fraud.



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‘organized crime has been involved’ in this kind of fraud. Furthermore, the cases concerned are primarily major and complex, involving the criminal courts of several Member States, in other words they are transnational in nature. Without giving any further evidence the Commission then goes on to say: ‘A problem on this scale must be met with an appropriate response. This is a specific form of crime which calls for a specific response. Given its nature, the response must include a repressive dimension (…)’. Moreover, if this kind of fraud is not genuinely prosecuted in the courts, ‘the credibility of European integration to public opinion could be seriously compromised’. Following on from this the Commission then discusses the ‘value added’ by a European PPS. What does this entail? In the first place, the creation of a PPS will overcome the fragmentation of the ‘European criminal-law enforcement area’, in which the police forces and courts of the Member States still have jurisdiction solely in their own territory, which has led to ‘competing or incomplete investigations, and in some cases to none at all’. Add to this the fact that some Member States have still not ratified the Convention of 26 July 1995 and its associated protocols on the fight against fraud. However, even if this were to happen and the Directive mentioned earlier were to be adopted, these provisions would not suffice to overcome the negative effects of the fragmentation of the European criminal-law enforcement area ‘since the prosecution function will still be exercised at national level’. Only with a European PPS and hence with ‘centralised management of detection and prosecution activities’ would the Community ‘enjoy effective and equivalent protection of its financial interests throughout the Union’. The second point put forward is that the traditional methods of judicial cooperation between the Member States are cumbersome and inappropriate. In this context the Commission acknowledges that cooperation in criminal matters as part of the Third Pillar will be strengthened, but that none of the relevant conventions ‘gives an adequate response to the specific question of criminal proceedings for acts to the detriment of the Community’s financial interests’. In particular organized crime harmful to these interests has developed in such a way that the conventional tools of mutual judicial assistance are no longer suited to the task, and the progress so far made in this area remains limited. According to the Commission, a European PPS would help to overcome these difficulties, since it ‘would provide an interface between the Community and the national judicial authorities’. This would – and these are the Commission’s own examples – make it easier to avoid the destruction of evidence and the disappearance of suspects. Third, a European PPS would, on the one hand, offer a solution to the problems currently experienced in the exchange of information (relating to both administrative and criminal matters) between Member States and the European

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Anti-Fraud Office (OLAF) as a result of the differences between the regimes that control this form of cooperation in the Member States. On the other hand, the establishment of a ‘common investigation and prosecution area’ would also help to overcome the barrier of ‘mutual admissibility of evidence’, because evidence gathered under the direction of the European PPS would be accepted without any problem in the courts in the Member States. The fourth point is that a European PPS would also provide some solace in the face of the criticism that the administrative investigations conducted by OLAF within the Community institutions are not very effective, due to the fact that criminal proceedings arising from such investigations are too dependent on the goodwill of the national enforcement authorities in the Member State where the offences were committed.

3. A Clay Base and an Empty Figure In a letter dated 1 May 2002 from the Minister of Justice to the President of the Senate of the States General, the Dutch government announced that it judged the Commission’s proposal favourably. The Minister does follow up this evaluation with a series of conditions, objections and questions.9 The list is so long that the reader gradually gets the impression that he has not wholeheartedly accepted the proposal with open arms and con amore, but has agreed to it more out of political necessity. Be that as it may, it is not our intention here to discuss the response of the Dutch government in depth, but rather to examine the reasons why the Commission thinks that there should be a European PPS. These centre around three issues: the scale and nature of the problem of organized crime in the context of EC fraud, the organization and operation of mutual judicial assistance in criminal matters, and the organizational embedment of the European PPS within the EU and within the Member States. 3.1. The Problem of Organized Crime The driving force behind the Commission’s proposal is the problem of the involvement of organized crime in EC fraud. Anyone who wants to find out how far this involvement goes, however, will find no answers either in the Green Paper or the Communications preceding it or in the reports about this kind of fraud published by the Commission and OLAF in recent years. These reports do give examples of fraud that smack of organized crime, but there are no figures or estimates of the scale of the problem.10 For instance, the Commission’s annual report for 2000 mentions three cases of large-scale fraud that clearly point to 9  10 

See footnote 2 above. For a discussion of the older reports, see the article referred to in footnote 7.



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organized crime; however, this was three out of a total of 6,915 new cases of fraud or irregularity confronting the Member States and OLAF in that year, and which, according to the explanatory notes, were not or by no means always committed within the context of organized crime.11 If you look at the OLAF report for the period covering June 2000 to May 2001, you see the same picture: a few significant (sometimes even the same) examples of fraud committed under the mantle of organized crime, but predominantly serious and less serious cases of ‘ordinary’ fraud.12 The conclusion is clear. The Commission is wrongly invoking the problem of organized crime to justify its proposal to establish a European PPS. Without more in-depth analysis of the scale of the problem, the need for such far-reaching intervention in the relations between the Member States and the Community or the European Union cannot be deduced from this factor. Even if this were a large-scale problem, we have to ask ourselves whether it should be tackled in the way that the Commission proposes in its Green Paper. This question is raised because of the position taken by the Commission, namely that organized crime in relation to EC fraud is a very special problem. Is this actually the case? According to the examples given, what this primarily involves is the smuggling of cigarettes, bananas and other goods. But there is nothing special about that at all: most forms of organized crime involve smuggling, if not of goods such as drugs and arms then of people. What is special about EC fraud is that it directly affects the financial interests of the EC. But is this sufficient reason to set up a European PPS to tackle it? Not in our opinion. Not only because the EC would thereby claim a privileged position for itself in criminal law enforcement activities within the EU, but also because it could then be postulated – with good reason – that other forms of organized crime should also be tackled in the same special way. Why EC fraud and not drug trafficking, traffic in human beings or arms trafficking? Are these less serious forms of organized crime? Are the financial interests of the EC not at stake here as well – even indirectly? But of course it is inconceivable that this path would be taken. Otherwise the horizontal fragmentation of law enforcement, to which the Commission is so opposed, would be supplemented with vertical fragmentation, as in the United States. This question is also prompted by the characterization – in the Green Paper – of EU fraud as a transnational problem. To a certain extent this is true of course: goods are brought across international borders, money flows back along the same route, there is communication at international level, and so on. However, as with all forms of organized crime that manifest themselves in smuggling, here, too, the production and distribution of goods is normally a local matter. 11  12 

See COM (2001) 255 final/2, pp. 24–27 and 76 ff. See the Activity report for the period 1 June 2000–31 May 2001, OJ C 365/31-63, 20 December 2001.

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This means that if organized crime is to be combated effectively, national and local police forces and judicial authorities must, first and foremost, be willing and able to tackle this kind of crime locally and must have the human and material resources to be able to operate across borders or to support or facilitate others in transnational investigation and prosecution activities. In any case transnational investigation and prosecution – in whatever shape or form – of organized crime depends on competent and decisive local structures. Against this background it is positively strange that the Commission wants to set up a European PPS at all costs, albeit in the form of a deconcentrated system. Why does it not concentrate on developing organizational and normative frameworks with which the police and the public prosecution service in the Member States have to comply in the fight against organized crime? Why does it not devise – following on from the anti-money-laundering Directive – mechanisms to gain more control over the other transnational aspects of such crime, for example the transport of illegal goods? Why does it not do its utmost to encourage police and judicial cooperation between the Member States in the fight against organized crime? And why does it still devote so little attention in practice to the transnational administrative approach to organized crime, such as the one developed in Amsterdam for instance.13 3.2. The Issue of Mutual Judicial Assistance In light of the above it is no wonder that the thought sometimes occurs that the Commission – or at least some of its officials – concentrates too much on, even seems almost obsessed by acquiring an element of power in criminal justice matters, and that its arguments are actually irrelevant. We have just discussed the argument that organized crime compels such a move (weighed and found wanting); we shall now turn to the argument that mutual judicial assistance does not operate very efficiently. Here, too, we can ask ourselves: is that really the case? On what is the Commission basing this assertion? Once again, it is not very clear, since neither the Commission nor anyone else has ever conducted serious empirical research into the efficiency of this form of judicial assistance. Naturally, problems associated with this form of cooperation are touched on time and again in Commission documents, and such problems do genuinely exist. Yet are they so huge that they impel the creation of a European PPS? In our opinion, this is not the case at present. Then there is the final report published in August 2001 presenting the results of the first evaluation of mutual judicial assistance in criminal matters, compiled

13  Cf. C. Fijnaut (ed.), De bestuurlijke aanpak van (georganiseerde) criminaliteit in Amsterdam (Amsterdam 2001).



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by experts in the Member States.14 Naturally, problems are also brought up in this report, but the concluding remarks are positive: ‘The evaluation exercise made it clear that, while mutual assistance is not without its faults, the criticism habitually levelled at it that it is slow, inefficient and powerless is excessive; in general mutual assistance does not operate as badly as it is reputed to do. In the field of drugs or serious offences under ordinary criminal law, a great majority of the practitioners interviewed consider that mutual assistance operates efficiently and to the satisfaction of the practitioners’. This conclusion is of course at odds with the position of the Commission. It therefore provides one more reason to attach little importance to this particular argument in favour of the Commission’s proposal to set up a European PPS. In our opinion the opposite should happen. Over the coming months the Commission should put all its energy into strengthening the mechanisms that have been devised in the past few years to improve the operation of judicial cooperation within the European Union: the judicial network and Eurojust. In any case it is preferable to optimize these two auxiliary structures than to set up yet another new auxiliary structure, in the form of a European PPS. Because, in essence, the European PPS is nothing more than that. Especially as this PPS – like the network and Eurojust – would ultimately very much depend on the way in which the Member States implement judicial assistance conventions. Its Deputy Prosecutors would also have to have frequent recourse to the cooperation mechanisms that are stipulated in these conventions in order to initiate the investigation and prosecution of cases of EC fraud perpetrated in several countries. In this respect it would not be substantially different from the judicial network and Eurojust. Under these circumstances it is more sensible to improve the existing bodies than to add a new one. Anyway in the long run no one would be able to make sense of the institutional framework of the EC/EU. 3.3. The Difficulty of Organizational Embedment The way in which the appearance of the European PPS has been described above does not actually do justice to the difficulty of its organizational embedment within the EU and within the Member States. That is why it is important to discuss this problem separately. In the Green Paper it is assumed that the European Public Prosecutor will be an independent authority, independent both ‘of the parties to any dispute in the context of adversarial proceedings and of the Member States and the Community institutions and bodies’. Apart from the fact that two forms of independence are mentioned in the same breath rather too easily, it is certain that they both 14  See the Final report on the first evaluation exercise – mutual legal assistance in criminal matters, OJ C 216/14–26, 1 August 2001.

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raise many questions about the organizational embedment of the European PPS. Here we would simply like to raise the question: who in the EC would have ultimate political responsibility for the actions of this Public Prosecutor? In other words, to whom would he have to answer for his actions? The Green Paper is silent on this point and merely makes provision for his removal from office in the event of serious misconduct. One could perhaps maintain that he would have to answer directly to the EP to some extent, since his office’s budget would be charged to the general budget of the European Communities. But would he then be politically responsible himself for what he does or does not do? Within the context of the European Union this is a very singular construct and one that is difficult to accept, since in many Member States the Minister of Justice has ultimate responsibility for the work of the PPS.15 As far as the Deputy Prosecutors are concerned, the impression given in the Green Paper is that the appointment of members of the national prosecution authorities to the European PPS would guarantee the so fervently desired power of the latter. Nothing could be further from the truth – in fact the opposite is true. By placing them under the authority of the European Public Prosecutor they will be reduced to being outsiders – or at least relegated to a marginal position – at national level within their own PPS. And on top of that they have no privileged relationship with the regular and/or special police forces that will actually have to conduct investigations into EC fraud on the territory of the Member States. This means that they will be faced with the well-nigh impossible task of finding human and material resources for their investigations, while having no say in how these proceed. And where in one or other of the Member States they will actually have some say or people are prepared to take into account their need for investigative resources, they will have to pursue their claims in a very competitive environment. This is because in the Member States, and certainly in the Netherlands, a fierce battle is almost constantly being waged over the scarce resources available to conduct the complex, major investigations mentioned by the Commission in the Green Paper. It is not apparent from the Green Paper whether the authors of the European PPS proposal are aware of this enormous problem – and the idea of an effective European PPS actually depends on this problem being solved. The proposal that the extra costs for the Member States as a result of this PPS should be charged to the European Prosecutor’s own budget does suggest some understanding of the problem, but it is not clear, for example, whether these would cover the total cost of major fraud investigations or just the administrative costs of the Deputy Prosecutors. An omission of this kind does show that the authors of the European PPS proposal are not very familiar 15  See, for example, C. Fijnaut, D. van Daele & S. Parmentier, Een openbaar ministerie voor de 21ste eeuw (Leuven 2000).



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with the practical aspects of criminal procedure in the Member States. In this respect their construct is very much akin to an institutional illusion.

4. Mandatory or Discretionary Prosecution Principle? One of the most fundamental issues raised in the Green Paper concerns the question of whether all proven cases of EU fraud should be brought before the courts.16 Would the European Public Prosecutor have the power or, alternatively, a real duty to institute criminal proceedings? Question 5 in the Green Paper is therefore: ‘Should the European Public Prosecutor be guided by the mandatory prosecution principle, as proposed by the Commission, or by the discretionary prosecution principle? What exceptions should be provided for in each of these cases?’ The Commission’s preference is for a mandatory prosecution system, modified by exceptions. The basic principle here is that the decision whether or not to prosecute must be made at Community level. The decisive factor for the Commission is that basically there should be uniform proceedings throughout the European law-enforcement area, which means no discretion for the European Public Prosecutor. This solution is explained only very briefly. We have already mentioned the key considerations: the desire to achieve uniform proceedings within the EU and the aim to stress the independence of the European Prosecutor. In fact the Green Paper adds merely the observation that there is a certain degree of convergence within the Member States in this area: everywhere a mandatory prosecution system is in operation, exceptions are possible, and everywhere a discretionary prosecution system exists, certain limitations apply. Combined with the aforementioned basic principle17 that in this area minimum discretion is best, it is logical to take the mandatory prosecution principle as the starting point for examining other considerations. In the Green Paper this is done without wasting words, and the substantive considerations are then confined to the kinds of exceptions that might be borne in mind within a mandatory prosecution system. Three exceptions are highlighted. First, steps should be taken to avoid overburdening the European Public Prosecutor with cases of minor importance. Trivial matters should not be brought before the courts. This could be ensured by setting a value threshold for fraud proceedings, or by introducing the more flexible criterion of ‘minor impact’ on the financial interests of the EU, which could be left to the discretion of the European Public Prosecutor. Secondly, provision might be made for an exception from the mandatory prosecution principle on the basis of the potential impact of the proceedings on the outcome of the case. This means that when a proportion of the charges brought against someone is See point 6.2.2.1., p. 54 ff. It goes without saying that a basic principle does not automatically form an autonomous argument. 16  17 

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sufficient to obtain judgment, it may be acceptable to overlook the rest of the charges. The third and final exception refers to the criterion of the effectiveness of recovery of sums corresponding to the financial interests that are violated. This concerns the possibility of an out-of-court settlement with deprivation of illegally obtained profits or advantages. By way of an explanation, the Commission adds that this would only be possible for offences relating to ‘modest amounts of money’ and – a prerequisite that may be regarded as somewhat shocking within our own legal system – ‘where the prospect of a conviction was small’. If a case were to be dropped at European level for one of the reasons mentioned, the file should be sent – according to the Green Paper – to the national authorities, leaving it to them to decide whether there is nonetheless reason to bring such a case before their own national criminal courts. In our opinion the Commission’s reasoning is unconvincing. It is, of course, true that within the Member States there is considerable approximation in the practical application of very different principles with respect to the exercise of the right to bring proceedings.18 However, this should not make us lose sight of the fundamental – and hence persistent – differences that remain. In both theory and practice it makes quite a difference if the initial question facing a prosecution authority is whether recourse to the courts must be justified (in terms of discretionary prosecution) or whether there should be specific reasons to waive prosecution.19 The Commission suggests that this is virtually academic. From the pragmatic viewpoint of combating the tiny section of crime the Commission refers to, there may be something to be said for this, but so much more is at stake here. The ill-considered choice of the Commission does not, for example, take any account of how this type of crime is rooted in the more all-embracing system of national prosecution. We shall now mention a few of the key points that have wrongly been left out of consideration in this context. First a few words about the arguments put forward by the Commission. The desire for uniform proceedings is not in the least dependent on a principle of mandatory prosecution. If the discretionary prosecution principle has sway over the right to bring proceedings at European level, this can of course be applied uniformly within the Member States. And even the argument aimed at encouraging the independence of the European Prosecutor strikes us as very contrived. The experience of some (not only southern) Member States of the 18  See the classic – but now outdated – study by H.-H. Jescheck, J. Driendl & R. Leibinger, eds., Funktion und Tätigkeit der Anklagebehörde im ausländischen Recht (Baden-Baden 1979); and more recently C. Fijnaut, D. Van Daele & S. Parmentier, eds., Een openbaar ministerie voor de 21ste eeuw (Leuven 2000); D. Van Daele, Het openbaar ministerie en de afhandeling van strafzaken in Duitsland (Leuven 2000); and P.J.P. Tak & J.P.S. Fiselier, Duitsland-Nederland en de afdoening van strafzaken (Nijmegen 2002). 19  Cf. J. Reijntjes in A.L. Melai et al., Het wetboek van strafvordering, Arnhem s.a., response 5 to Art. 167 (suppl. 120).



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EU indicates that the mandatory prosecution principle can happily go hand in hand with political influence being exerted on the PPS and the well-known Dutch example demonstrates that such ‘interference’ may well be limited where prosecution is discretionary. What is more, where a European PPS were to adopt a mandatory prosecution system it would in fact become even more dependent in other respects: for instance on the supply of cases, which would inevitably continue to fall largely outside its sphere of influence. Naturally, in the fight against EU fraud, the general guideline that should prevail is that violation of the European Union’s financial interests must be combated using resources, both material and procedural in nature, that are no less decisive than the measures taken to avert comparable infringements of national law. In this context sanctions must be effective, proportional and dissuasive in equal measure.20 From this starting point there are, however, other considerations that argue in favour of a more selective – and hence less automatic – use of the penal system. For instance, it has often been propounded that it can be of immense importance to have a free hand to some extent in the choice of administrative or penal instruments to tackle specific cases of EU fraud.21 This system will be thrown overboard without any explanation if the choice of a mandatory prosecution system results in criminal law in this area being unconditionally promoted to superior enforcement model. But even if we momentarily confine ourselves to criminal law, the choice of a mandatory prosecution system in this area is a disruptive starting point. How can it ever be justified within a national legal system like the Dutch one that financial damage to the EU always, in principle, leads to criminal proceedings, but that similar harm to the Dutch State does not? To put it in even stronger terms: why should there be this drastic obligation in the event of financial loss for a legal entity, with a regime that is less oriented towards protection in cases of serious loss resulting from injury for natural persons? If there are good reasons to hold onto the starting point of a discretionary prosecution system in the most far-reaching criminal cases – it requires little imagination, in a transnational context, to think of terrorism, trafficking in women and in human beings in general, or organized crime revolving around drugs – then it is completely

20  These requirements are elaborated in every book and manual on European law; see, for example, Geert Corstens & Jean Pradel, European Criminal Law (The Hague/London/New York 2002). 21  For example Y. Buruma, ‘EC Law and the National Enforcement Agencies’, in M.S. Groenhuijsen & M.I. Veldt, eds., The Dutch Approach in Tackling EC Fraud (The Hague-London-Boston 1995) pp. 73–84. If our perception is correct, the policy of DG XX in the Commission over the past ten years has – at least in theory – been aimed at giving a prominent role to administrative law in the fight against criminal wrongdoings that affect the financial interests of the European Union. In point III.1 above we pointed out that relatively little has yet been done in practice to give this aim flesh and blood.

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arbitrary to rule out, in principle, any power of balancing of interests only where EU fraud is concerned. It is likely that the unspoken, deeper reason for this proposal lies in the desire to be better able to protect EU funds from Member States that may pay lip service to the principle of combating EU fraud, but are not very conscientious when it comes to putting that principle into practice. In the Brussels corridors of power there are actually whispers about countries (including southern ones) where the ‘creative’ appropriation of EU funds is regarded more as an act of patriotism than as a crime that should be vigorously combated. Would the choice of a mandatory criminal prosecution system then be an effective means of gaining better control over these recalcitrant Member States? We think not. The decision to prosecute is only part of the wider penal process. In principle there is only something to decide in this respect if the preliminary inquiry has yielded sufficient findings to make a judgment by the criminal court feasible.22 This situation implies, with a certain predictability, that the introduction of a duty to prosecute in the aforementioned less enthusiastic Member States will lead to a kind of ‘displacement effect’. If all feasible cases must be brought before the court, a different approach to criminal investigations will result in fewer cases being ‘solved’, so that there will be nothing more to decide with regard to possible criminal proceedings. The only conceivable remedy for this escape route is for the European Public Prosecutor to have a direct say in the scale and specific deployment of investigative resources within the Member States. But this brings us back to the problems identified in the previous section concerning the organizational embedment of the Commission’s proposals in the invariably nationally determined institutional relations. The conclusion is inescapable: both in a model based on the mandatory prosecution principle and in a discretionary prosecution system, the competent judicial authorities inevitably have considerable discretion. An important advantage of working with a discretionary prosecution system is that their discretionary power in this area is evident. The advantage of transparency then means that judiciary control over the way in which that freedom is used is both plausible and practicable. This, too, furnishes further arguments not to support the Commission’s proposal.23

22  Here we give a pertinent reminder of the Commission’s idea – so alien to the legal system in our view – that an exception to the mandatory prosecution principle by means of an out-of-court settlement might be acceptable if the prospect of a conviction were small. 23  Similarly, the comments by Dasec referred to in footnote 2 above; at variance with these is the aforementioned response of the Dutch government, which can ‘concur with the choice of a mandatory prosecution system for the limited and separate law-enforcement area over which the EC Prosecutor would have jurisdiction’.



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5. Harmonization of the Law of Evidence As soon as serious study was first undertaken on the legal problems associated with combating EU fraud, attention was drawn to the differences between the applicable rules of law in the Member States. In so doing, the fact that it may be difficult if the relevant definitions of offences differ from one another has always been borne in mind. For that reason there has been a constant effort to insist on more common definitions of the most relevant offences (especially fraud, corruption and money-laundering). The Green Paper continues this trend in the area of substantive law: a higher level of harmonization than hitherto proposed is recommended.24 Besides substantive law, however, procedural law has increasingly been the subject of critical consideration. In different countries the government can exercise very varied powers in order to obtain information about fraudulent activities. For our purposes there are theoretically two ways of limiting the drawbacks of this. The first option is to work towards harmonization of investigative powers; the second is to preserve the differences while attempting to minimize the consequences of the existence of different national systems of standardization. In the wake of the decisions taken by the European Council in Tampere,25 the Commission opts for the latter approach. The gist of the proposal is that any national court would have to admit any evidence lawfully obtained in another Member State – as well as evidence that arises from investigation of the Community institutions. The other option, Community unification of investigative powers, is rejected. It is – rightly – implied that this would be a bridge too far: it would be tantamount to general codification of criminal procedure in Europe, which would be right out of proportion to the objective and scope of the Green Paper.26 To begin with, we must state that the Commission mentions some important arguments for the solution chosen. The main one may perhaps be the desire to prevent ‘forum shopping’. The European Public Prosecutor must be prevented from conducting prosecutions in the Member State that has the most flexible rules concerning the admissibility of evidence. In that regard there is indeed much to be said for a certain form of recognition of acts of investigation undertaken abroad. There is also a downside, however. The proposed solution gives rise to new problems. First there is the element of consistency within the system. In the field of EU fraud why should a fundamentally different principle be accepted See point 5.2. of the Green Paper and point II.1 above. Conclusion 36 of the Presidency of the Tampere European Council: ‘evidence lawfully gathered by one Member State’s authorities should be admissible before the courts of other Member States’. 26  See point 6.3.4. of the Green Paper. 24  25 

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than is the case in inter-State judicial assistance, where other types of serious transnational crime are involved? The problem is likewise well-known,27 is being intensively studied in those sectors (even within the territorial boundaries of Europe), but for various reasons has not yet led to an approach that is acceptable to every jurisdiction.28 The second problem concerns the image of the aforementioned ‘forum shopping’ by the judicial authorities. In the Commission’s proposal a premium is actually placed on concentrating investigation activities in countries with overdue or incomplete legislation. Member States with strict rules governing exclusion of evidence or with strict standardization of special investigative powers – sometimes even with an explicit prohibition of some forms of intervention – would be rejected as a potential investigation coordination centre. And if the trial were then to take place in such a jurisdiction, that country would be faced with the obligation of accepting in court any evidence that has been obtained unlawfully according to its own criteria. This option gives rise to a variety of difficulties of a practical nature. At present a Dutch court reviews the evidence obtained in another Member State against its own national law.29 According to the Green Paper, the court should examine the legitimacy of the entire investigation on the basis of the law applicable in the country where the evidence has been gathered. This implies that the national court would have to be familiar with the law of criminal procedure in all EU Member States. If we consider how difficult it can be in practice to reach a decision on the well-known principle of dual criminality (liability to punishment for an offence that is punishable by the laws of two states) in, for example, extradition law – a mere trifle compared to the present technical problems of foreign investigations – then this augurs a great many linguistic and legal worries that the Commission does not even seem to have thought of in its proposal. Finally, on this point there is a further dogmatic complication, which we feel has been insufficiently scrutinized. In this part of the Green Paper the Commission repeatedly mentions the ‘admissibility of evidence’. This consistently refers to the method of obtaining evidence, and the definition of the problem is almost entirely confined to the system of standards against which the investigative acts 27  Summed up in a few key words, this concerns the question of the relationship between the principles of locus regit actum versus forum regit actum, supplemented with general basic standards from, for example, human rights conventions. See Y.G.M. Baaijens-van Geloven, ‘Strafvordering en rechtshulp’, report 3 in M.S. Groenhuijsen & G. Knigge, eds., Het vooronderzoek in strafzaken. Tweede interimrapport onderzoeksproject Strafvordering 2001 (Deventer 2001) especially p. 366 ff. 28  Cf. J. Koers, Nederland als verzoekende staat bij de wederzijdse rechtshulp in strafzaken, Tilburg thesis (Nijmegen 2001) especially pp. 515–608, which contains a lot of comparative legal data and additional bibliographical references. 29  See, for example, Supreme Court ruling 18 May 1999, NJ 2000, 187 with notes Sch., and J. Koers, loc. cit.



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in question have to be tested. In practice, however, the way in which the findings of an investigation may be presented as evidence in criminal proceedings in the country acting as the venue for the trial is of equal importance (in this context the Germans speak of ‘Beweiserhebungsbestimmungen’). This issue concerns the law of evidence in the narrow sense, and on that point major problems persist, even in the Commission’s proposal, which have not yet been given systematic consideration. The Green Paper merely touches on the subject occasionally. Without providing much in the way of rationale, it is suggested that it would be worth evaluating whether there is a need for the European Public Prosecutor to have the possibility of applying specific procedures reflecting cross-border situations. In this connection the following is mentioned as an example: ‘European record of questioning of witnesses on the basis of testimony given, and European record of questioning of the accused, including video-conferences in both cases’.30 It is easy to put forward such ideas almost in passing. The authors of the Green Paper do not, however, seem to be aware of the enormous implications of this kind of recommendation for the style of criminal proceedings in the various Member States. Such suggestions do not concern peripheral provisions, but strike right at the heart of the national procedural culture, which most countries would not wish to relinquish just yet.31 These types of specific procedures insidiously lead to an obligation to introduce partial codification or unification of the European law of criminal procedure, which the Commission, just a few paragraphs earlier, had said would be out of proportion to the specific objective of the Green Paper. We therefore feel that this would not be desirable, unless the dogmatic finesse of such reforms were explicitly thought through and justified.

6. Conclusion Europe is in flux. Clearly, the field of criminal law is also affected by this. In that context the idea of establishing a European PPS to protect the financial interests of the EU was put forward a few years ago. That idea has recently been developed in a Green Paper from the Commission. In our present contribution to the debate we have described the Commission’s conception of what this new prosecution body should look like and what its expected benefits are. On the basis of what has been discussed we have to conclude that the proposals presented are not convincing.

See point 6.3.4.1. of the Green Paper. The specific examples of European records of questioning would, incidentally, be easy to incorporate into the Dutch prosecution system. However, for countries where considerably greater emphasis is placed on verbal procedures and the immediacy principle, the situation may be very different. 30  31 

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New European institutions should only be created if they can offer a solution to essential problems. We have argued, first, that the problems highlighted by Commission have not been rendered sufficiently credible and, second, that the recommended instrument is not the most appropriate means of combating the supposed evil. The European PPS would only be competent to deal with – to put it briefly – EU fraud, because this type of organized crime poses a particular threat that cannot adequately be countered in another way. Based on all the academic research available, we have contended that EU fraud has no special characteristics compared with other forms of organized and transnational crime. What is more, little is known about the precise scale of EU fraud, and also the basic processes of this type of crime take place locally, so that efforts to combat it properly are primarily dependent on competent and decisive local (i.e. national) structures. In so far as the problem really is important and has to be tackled on a transnational level, we have shown that little practical attention has been devoted – wrongly in our view – to the possibilities of administrative instruments. And where penal interventions are the appropriate course of action, we have recommended – based on expert reports from the EU itself – that more benefit should be expected from investments in intergovernmental cooperation in the judicial network and in Eurojust than from the creation of a European PPS. A European PPS as outlined in the Green Paper would also give rise to enormous problems in relations with national penal authorities. We have pointed out the shortcomings with regard to political responsibility for the actions of a European PPS. We have clearly explained that the construct of a European Public Prosecutor with Deputy Prosecutors in the Member States would make the latter somewhat of a ‘Fremdkörper’ within their own national PPS. We have also shown that within the proposed organization the European Deputy Prosecutors would ultimately be faced with an impossible task because they would have no say in the deployment of human and material resources in the investigations to be conducted. On a technical front there is also much to find fault with in the Commission’s proposals. We have singled out two issues by way of illustration. If there is in fact to be a European PPS, the Commission thinks that the exercise of the right to bring proceedings should be governed by the principle of mandatory criminal prosecution. The arguments in favour of this have been examined and found to carry little weight: the principle of discretionary prosecution is preferable in this field, too. Finally, we have drawn attention to significant shortcomings in the considerations contained in the Green Paper concerning a certain degree of harmonization of the law of evidence in the Member States. The Green Paper therefore points in the wrong direction. Implementation of the ideas it contains would in many respects be disruptive for the existing



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prosecution system, without the need for the proposals or the results expected having been demonstrated. The European Commission is the injured party in cases of EU fraud. The Green Paper once again shows, in particular, that it is not without risk when the victim itself takes the lead in determining the best penal response to certain types of crime.

Constitutional Conditions for a Public Prosecutor’s Office at the European Level Walter van Gerven 1 Professor at the Universities of Leuven and Maastricht, Belgium and the Netherlands

1. Introduction At the moment there is no European Public Prosecutor’s (hereafter EPP’s) Office and whether there should be one remains a controversial question. It is not the subject of this contribution to discuss the desirability or feasibility of such an Office. As requested by the organizers of this Conference, we want to examine here only the constitutional conditions for such an Office if it were decided to establish one. Nonetheless it should be mentioned at the outset that an effort to organize an EPP Office in legal terms has been undertaken in the Corpus Juris project launched by a group of academics with the support of services of the European Commission and members of the European Parliament.2 The project purports to introduce penal provisions and sanctions to protect the financial interests of the European Union (Articles 1–9) and provisions of criminal procedure (Articles 18–35). The departure point for the Code ‘is the establishment of a single legal area for the purposes of investigation, prosecution, trial and execution of sentences for the offences described in the penal provisions of the Code, this legal area comprising the territory of all the Member States of the European Union. For this purpose, it proposes the creation of a European Public Prosecutor (EPP), made up of a European Director of Public Prosecutions and European delegated Public Prosecutors residing in the capital of every Member State. This EPP is indivisible, implying that any act of any of its members in any Member State is 1  Former Advocate General at the European Court of Justice. Former Member of the Committee of Independent Experts to investigate fraud in the EU Commission. 2  M. Delmas-Marty, ed., Corpus Juris Introducing Penal Provisions for the Purpose of the Financial Interests of the European Union (Paris 1997). In the meantime proposals of amendment have now been prepared: see M. Delmas-Marty, ‘Combatting fraud – Necessity, Legitimacy and Feasibility of the Corpus Juris’, 37 C.M.L. Rev. (2000), at pp. 247–256, and in French: ‘Nécessité, legitimité et faisabilité du Corpus Juris’, 7 AGON (1999), No. Juris 25, at pp. 5–9.

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taken as an act of the EPP itself (Article 18). It further implies that members of the EPP have competence across the EU and that warrants for arrest, transfers of persons under arrest and judgments have full effect across the EU (Article 24)’.3 The Code also contains provisions for judicial review of acts taken at the preparatory stage of criminal proceedings by an independent and impartial judge appointed by each Member State from the (national) court where the (national) European delegated Public Prosecutor is based (Article 25). This contribution is divided in three parts. First we will describe the existing legal framework at the European level for the investigation and prosecution of fraud affecting the financial interests of the European Community and of transborder crime, organised or otherwise. Then we will examine the legal basis for such investigation and prosecution. Finally we will consider the issue of protection of human rights and of due process.

2. Legal Framework 2.1. The Distinction between Fraud and Administrative Irregularity The European Union’s legal framework relating to the fight against fraud concerns inthe first place the protection of the Communities’ financial interests. In that respect it distinguishes fraud from mere irregularities. According to Article 1(1) a of the ‘Convention on the protection of the European Communities’ financial interest’4 (hereafter ‘PFI Convention’), fraud affecting such financial interests consists of ‘an intentional act or omission’ which has for effect the misappropriation or wrongful retention of funds, or the illegal diminution of resources. In contrast, according to Article 1(2) of Council Regulation 2988/95, irregularity shall mean ‘any infringement of a provision of Community law resulting from an act or an omission’ having for effect to prejudice the general budget of the Communities or budgets managed by them.5 Whilst fraud is mainly, but not necessarily, a matter of criminal law, irregularity is primarily a matter of administrative law.6 2.2. The Relevant Treaty Provisions Article 280 (ex 209a) EC Treaty is the key provision for the fight against ‘fraud and any other illegal activities affecting the financial interests of the Community’ which the ‘Community and the Member States shall counter … 3  Thus the Second Report on Reform of the Commission of Independent Experts of 10 September 1999, at 5.12.14, which endorses the general idea of an EPP (can be found on Doc.EN/ DV/381210EN.doc). 4  Drawn up by Council Act of 26 July 1995, OJ C 316 of 27 November 1995, at pp. 48–57. 5  Council Regulation (EC, Euratom) 2988/95 on the Protection of the European Communities’ financial interests of 18 December 1995, OJ L 318 of 23 December 1995, at pp. 1–4. 6  Second report of the Committee of Independent Experts referred to above in footnote 3, at 5.1.4.



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through measures to be taken in accordance with this Article, which shall act as a deterrent and be such as to afford effective protection in the Member States’ (para. 1). That implies in the first place that ‘Member States shall take the same measures to counter fraud affecting the financial interests of the Community as they take to counter fraud affecting their own financial interests’ (para. 2). Such measures may therefore have to comprise penal substantive and procedural law provisions and sanctions if those are the measures taken at the national level to protect the financial interests of their own Member State. Member States shall in the second place coordinate their action and to this end ‘organise, together with the Commission, close and regular cooperation between the competent authorities’ (para. 3). Furthermore the Council shall, in accordance with the co-decision procedure referred to in Article 251 (ex 189b) EC, and thus acting by qualified majority, ‘adopt the necessary measures in the fields of the prevention of and fight against fraud affecting the financial interests of the Community with a view to affording effective and equivalent protection in the Member States’. However, it is added: ‘These measures shall not concern the application of national criminal law or the national administration of justice’ (para. 4). Whilst Article 280 EC – being part of the so-called first pillar of EU law – concerns only and exclusively the fight against fraud affecting the financial interests of the Community, Article 29 (ex K1) ff. TEU – being part of the third (and therefore intergovernmental) pillar of EU law – aim at the fulfillment of the Union’s objective ‘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 …’ (Article 29, para. 1). ‘That objective shall be achieved by preventing and combating crime, organised or otherwise, in particular terrorism, trafficking in persons and offences against children, illicit drug trafficking, corruption and fraud, though: – closer cooperation between police forces …; – closer cooperation between judicial … authorities of the Member States …; – approximation, were necessary of rules on criminal matters in the Member States …’ (para. 2). Common action between police forces, with the involvement of Europol, is further described in Article 30 (ex K.2) TEU, whilst common action on judicial cooperation in criminal matters is dealt with in Article 31 (ex K.3). The latter action shall include ‘progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking’ (sub e)). Adopting rules in other fields than the ones mentioned, or in those mentioned but relating to other matters, e.g. criminal procedure, including the establishment of an EPP, seems not to fall within the scope of that provision (but may fall within the scope of Article 40 TEU: see infra). Furthermore, Article 34 (ex K.6) empowers

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the Council to take ‘measures and promote cooperation … contributing to the pursuit of the objectives of the Union’ (in all areas referred to in Title 6 TEU, which is about ‘police and judicial cooperation in criminal matters’) and may to that end adopt, among other legal instruments, ‘framework decisions for the purpose of national laws and regulations’ which have a similar effect as directives of EC law except that they ‘shall not entail direct effect’ (para. 2(b)) and ‘establish conventions, which it shall recommend to the Member States for adoption in accordance with their respective constitutional requirements …’. Unless they provide otherwise such ‘conventions shall, once adopted by at least half of the Member States, enter into effect for those Member States’ (para. 2(d)). Insofar as a Member State has made a declaration to that effect, the Court of Justice shall have jurisdiction, under certain restrictive conditions, ‘to give preliminary rulings’ on the interpretation of conventions and on the validity and interpretation of framework decisions, and of the measures implementing conventions (Article 35, paras. 1 and 2 juncto 3). The Court is also granted a limited jurisdiction to review the legality of framework decisions, but only at the request of a Member State or the Commission, and therefore not of another Community institution or of a private person directly and individually concerned (para. 6). It does not have the power to ascertain noncompliance on the part of Member States with their obligations under the TEU comparable to the Court’s jurisdiction under Articles 226–227 (ex 169–170) EC. According to Article 40 (ex K.12), para. 1, TEU, Member States may, under certain conditions, choose ‘to establish closer cooperation between themselves’ and to that end ‘make use of the institutions, procedures and mechanisms laid down by the Treaties’. 2.3. Implementing Measures So far a variety of implementing measures have been taken, before the Treaty of Amsterdam entered into force, both in respect of areas now covered by Article 280 EC (as amended by Amsterdam, then on the basis of Article 235, now 308, EC), and thus relating to the protection of the financial interests of the Community, and in respect of areas covered by Article 29 ff. (ex K.1 ff.) TEU, and thus in criminal matters relating to the prevention and combating of serious crime, organised or otherwise. It is not the place here to consider those measures in depth and a short description of the most important of them may suffice. The administrative measures in place relating to areas covered by Article 280 (ex 209a) EC fall into two categories, i.e. external and internal measures. The former concern the fight against fraud affecting the financial interests of the Community in the Member States (where the major part of the Community budget is spent). The latter concern the same kind of fraud within the Community institutions, bodies and agencies.



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Council Regulation 2988/95 of 18 December 1995,7 which studiously avoids the term ‘fraud’ with its criminal law connotations, by employing the word ‘irregularity’, intentional or otherwise, introduces a framework for the Commission’s external action in all sectors of the budget. It provides the Commission with the authority to carry out administrative checks, introduce specific measures and apply administrative sanctions, including fines, in the protection of the Community’s financial interests. It also lays down general rules on proportionality, statutes of limitation, non bis in idem (of administrative measures in relation to national criminal proceedings), the imposition of sanctions on legal entities, etc. It states explicitly in its preamble that it does not affect the application of criminal law of the Member States. The above Regulation has been implemented by Council Regulation 2185/968 which constitutes a similar attempt to pull together a range of disparate rules contained in sectoral regulations into a common framework. The Regulation lays down provisions for the administrative on-the-spot checks and inspections foreseen in Article 10 of Regulation 2988/95. The effect of the Regulation is to empower the Commission (now OLAF9) to carry out inspections of an administrative nature in the Member States (i.e. external enquiries on its own authority and under its own responsibility. The Regulation describes the situations where on-the-spot inspections may be carried out with a view of avoiding overlaps with checks carried out by the Member States themselves. It regulates the cooperation with the national authorities at the occasion of such checks and describes the aim to be pursued, the Commission’s powers and their limitations, the procedures to be followed and the secrecy of the information obtained. The economic operators concerned must give the competent Commission officers full access to their premises and must allow them to inspect their documentation, including invoices, bank accounts, etc. In the preamble of the Regulation it is stated again that its provisions do not affect the competence of the Member States in criminal matters. By Decision adopted on 14 July 199810 the Commission regulates the conduct of primarily internal inquiries. Among other matters it obliges senior officers of the Commission to report to UCLAF11 (now OLAF; see below) all suspicion Referred to in footnote 5. Council Regulation (EC, Euratom) 2185/96 concerning on the spot checks and inspections carried out by the Commission in order to protect the European Communities’ financial interests against fraud and other irregularities of 11 November 1996, OJ L 292 of 15 November 1996, at pp. 2–5. 9  OLAF is the French acronym of Office pour la lutte anti-fraude. Its predecessor’s name UCLAF is the French acronym of Unité de Coordination de la lutte anti-fraude. 10  The Decision is mentioned and commented on in the Second report of the Committee of Independent Experts referred to in footnote 3 where in Annex 2 a useful summary is found of all legal (first and their pillar) texts we are concerned with herein. 11  See above, footnote 9. 7  8 

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of fraud in their services affecting the Communities’ financial interests, and obliges all officials to fully cooperate with UCLAF and to provide unrestricted access to all information and documentation. It authorities the director of UCLAF to undertake internal investigations on his own initiative and to notify the competent national judicial authorities of cases where criminal proceedings may be appropriate. As stated above, the provision of legal instruments in criminal matters is governed by Articles 29 ff. TEU. Already before the entry into effect of the Treaty of Amsterdam many Joint Actions were adopted by the Council primarily in the area of police cooperation.12 In the area of judicial cooperation the most important action is the Convention of 26 July 199513 on the protection, once more, of the Communities’ financial interests. It establishes a common definition of fraud (referred to above) and requires all Member States to treat the offences meeting this definition as criminal offences punishable by criminal penalties, including custodial sentences for serious cases. It further includes provisions to ensure that rules on jurisdiction and extradition between Member States cannot provide loopholes to avoid prosecution for fraud while placing Member States under an obligation to cooperate in the fields of criminal investigation, prosecution and sanction of fraud. In the two protocols to the Convention14 further agreement was reached on a common definition of corruption involving officials of the European Communities or officials of Member States (first protocol) as well as on other subjects, such as money laundering (to be made a criminal offence) and confiscation of proceeds of fraud (second protocol). 2.4. Investigating and Prosecuting Offices After repeated requests from the Committee on Budgetary Control of the European Parliament, the Commission decided on 20 November 1987 to establish a central anti-fraud coordination unit (UCLAF) and to generalise anti-fraud cells in the main spending and revenue services. UCLAF became operational in For an enumeration, see by K. Lenaerts and P. van Nuffel, Constitutional Law of the European Union, R. Bray, ed. (London 1999) at p. 255, No. 4-229 where an overview is given of police and judicial cooperation in criminal matters, at pp. 253–258, Nos. 4-228-4-231. 13  Referred to above in footnote 5. 14  The first protocol is drawn up by Council Act of 27 September 1996, OJ C 313 of 23 October 1996, at p. 1 (on corruption of civil servants, both national and Community; a subject also dealt with in a later Convention drawn up by Council Act of 26 May 1997, OJ C 195 of 25 June 1997, at p. 1) and the second by Council Act of 19 June 1997, OJ C-221 of 19 July 1997, at p. 11 (on miscellaneous subjects, such as money loundering and liability of, and sanctions against, legal entities). A third protocol was drawn up by Council Act of 29 November 1996, OJ C 151 of 20 May 1997, at p. 1 (on the interpretation by way of preliminary rulings by the ECJ of the Convention: see now Article 35 TEU referred to later in the text above footnotes 49–50). See also K. Lenaerts and P. van Nuffel, referred to in footnote 12, at pp. 372–373, No. 7-127. 12 



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July 1988.15 Over the years its importance increased, thus when it was decided that it should fulfill an investigative role and be involved in judicial procedures in the Member States. Confronted with many still existing gaps, as highlighted in Report 8/98 of the Court of Auditors,16 it was finally decided to enhance the role of UCLAF, now to be called OLAF, and to increase its independence. OLAF was established by Commission Decision of 28 April 199817 and came into being on 1 June 1999. The Office was empowered ‘to exercise the Commission’s powers to carry out external administrative investigations for the purpose of strengthening the fight against fraud, corruption and any other illegal activity adversely affecting the Community’s financial interests, as well as any other act by operators in breach of Community provisions’. The Office was further empowered to carry out internal administrative investigations to combat activities as specified above as well as to investigate breaches of obligations by officials and servants of the Communities (and similar breaches by Members of the institutions) which are ‘likely to lead to disciplinary and, in appropriate cases, criminal proceedings’ (Article 2, para. 1). The Office shall exercise its powers in complete independence and its director ‘shall neither seek nor take instructions from the Commission, any government or any other institution or body’ (Article 3). The discharge by the Office of its investigative function shall be regularly monitored by a Surveillance Committee which is to be set up (Article 4). On 25 May 1999, a new Regulation 1073/1999 was adopted by the Council and the European Parliament to regulate OLAF’s activities.18 It confirmed the power of the Office to carry out the external and internal ‘administrative investigations’ (Articles 2–4), to be opened by a decision of the Director of the Office at his own initiative or following a request from a Member State concerned respectively an institution (Article 5). It regulates the procedure to be followed, the confidentiality of information obtained, the duty to inform and the possibility of forwarding information (Articles 6–10). It sets up a Supervisory Committee 15  For a comprehensive chronological overview of the fight against fraud, see Annex 1 to the Second report referred to in footnote 3. For an excellent scholarly discussion (however, before the entry into force of the Amsterdam Treaty; but see chapter 9 of the book): S. White, ‘Protection of the Financial Interests to the European: the Fight against Fraud and Corruption’, 15 European Monographs (1998) 244 pages. 16  Special Report no. 8/98 on the Commission’s services specifically involved in the fight against fraud (…) OJ C-230 of 22 July 1998 referred to and commented on in the Second report of the Committee of Independent Experts referred to in footnote 3. 17  Commission Decision of 28 April 1999 establishing the European Anti-fraud Office (OLAF), OJ L-136 of 31 May 1999, at pp. 20–22. 18  Regulation (EC) No. 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-fraud Office (OLAF), OJ L-136 of 31 May 1999, at pp. 1–7. See also Regulation (Euratom) No. 1073/1999 of the same date, published in the same OJ at pp. 8–14.

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composed of five independent outside persons, appointed by common accord of the European Parliament, the Council and the Commission for a period of three years, once renewable, and describes its monitoring function: at the request of the Director or on its own initiative ‘it shall deliver opinions to the Director concerning the activities of the Office, without however interfering with the conduct of investigations in progress’ (Article 11, para. 1). The Director shall forward to the Committee each year the Office’s programme of activities and shall keep the Committee regularly informed of its ‘activities, investigations, the results thereof and the action taken on them. Where an investigation has been in progress for more than nine months, the Director shall inform the Supervisory Committee of the reasons for which it has not yet been possible to wind up the investigation, and of the expected time for completion’ (para. 7). Although the above Regulation confers wide investigate powers to OLAF, both external and internal (Article 3 referring for external investigations to the existing Regulations 2185/96 and 2988/95,19 and Article 4, para. 2, enumerating the powers for internal investigations), those powers do not intend to affect ‘the current distribution and balance of responsibilities as between the national and Community levels’ (preamble under (3)) This means that it is for the Director ‘to forward directly to the judicial authorities of the Member State concerned information acquired by the Office in the course of internal [as well as external] investigations concerning situations liable to result in criminal proceedings (preamble under (13)). And although it must be the ultimate goal to organise an adequate judicial review of the legality of the independent Director’s action, that goal is certainly not reached by the establishment of the Supervisory Committee which has not even a quasi-judicial status,20 nor by the reference in Article 14 of the Regulation to judicial review on behalf of Communities’ officials and servants under the Staff Regulations in effect. The preamble contains solely a statement of intention in that regard stating under (10) that investigations must be conducted ‘with full respect for human rights and fundamental freedoms, in particular the principle of fairness, for the right of persons involved to express their views on the facts concerning them and for the principle that the conclusions of an investigation may be based solely on elements which have evidential value …’ By an interinstitutional agreement of 25 May 199921 the European Parliament, the Council and the Commission declared that ‘on the basis of their administrative autonomy, all the institutions, bodies and offices and agencies should Referred to supra in footnotes 8 and 5. See the comment in the Second Report of the Committee of Independent Experts, referred to supra in footnote 3, at 5.11 and 5.12, particularly at 5.12.6–5.12.9. 21  Interinstitutional Agreement of 25 May 1999 between the European Parliament, the Council of the European Union and the Commission of the European Communities concerning internal investigations by the European Anti-fraud Office (OLAF). 19  20 



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entrust to the Office the task of conducting internal administrative investigations with a view to bringing to light serious situations relating to the discharge of professional duties …, detrimental to the interests of [the] Communities and liable to result in disciplinary or, in appropriate cases, criminal proceedings, or serious misconduct …’ (under (4) of the Agreement’s preamble). In annex to the Agreement there is a model decision to be taken by each of the organs concerned on ‘the terms and conditions for internal investigations in relation to the prevention of fraud, corruption and any legal activity detrimental to the Communities’ interests’. All the above concerns investigative administrative powers in view of protecting the Communities’ financial interests. So far, no action has been undertaken within the framework of the third pillar of the EU with regard to judicial investigative or prosecuting powers in criminal matters, that is in respect of the serious crimes referred to in Article 29, para. 1, TEU. The only action to be mentioned here (but then in the area of police cooperation which is governed by Article 30 (ex K.3) TEU), is the Convention of 26 July 1995, on the establishment of a European Police Office (Europol)22 – the only ‘third pillar’ Convention so far which came into effect – as a result of which Europol took up its activities on 1 July 1999.23 The question has not been raised so far whether the ‘third pillar’ provisions should (and could) be used to set up a Public Prosecutor’s Office at the European level of the kind envisaged in the Corpus Juris project (and briefly described at the outset of this contribution). The first issue to be decided in that regard is whether such as EPP should be established, as proposed by the drafters of the Code, during a first stage only for criminal offences affecting the Communities’ financial interests, an area that is not specifically mentioned in Article 29, para. 1, TEU which refers to ‘fraud’ in general (but is understood to include that area, as is shown by the establishment of the PFI Conventions and protocols, mentioned supra), or whether it should rather be established in view of combating ‘genuine transborder crime, particularly organised crime, in the areas explicitly mentioned in Article 29, para. 1, TEU. If one takes the first restrictive option, such an EPP might in a first stage be made competent solely (in order to make Member States familiar with the Office of EPP) for criminal offences which are internal to the Communities, and then, in a second stage, also for criminal offences committed externally, that is in the Member States. It would seem, however, that the Commission is in favour (as I am) for the second broader option which is to provide in an EPP’s Office for the (even more) serious crimes provided in Article 22  Council Act of 26 July 1995 drawing up the Convention based on Article K.3 of the Treaty on European Union, on the establishment of a European Police Office (Europol Convention), OJ C-316, at p. 1. 23  See further K. Lenaerts and P. van Nuffel, referred to supra, footnote 12, No. 4-229, pp. 255–257.

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29 TEU (but including, as mentioned, internal and external offfences against the Communities’ financial interests where those offences lead to committing criminal acts). For indeed, in its Opinion of 26 January 200024 – following the Presidency Conclusions on ‘a Unionwide fight against crime’, drawn from the European Council meeting of 15–16 October 1999 at Tampere25 – the Commission recommends to the IGC ‘to supplement the current provisions relating to protecting the Community’s financial interests by a legal basis in view of setting up a system of rules relating to criminal proceedings in cross-border fraud, notably by the establishment of a European Public Prosecutor’. By making this proposal, the Commission seems to admit that, even after Amsterdam, there is no jurisdiction in the Community to enact legislation in criminal matters. That is the subject of the following section.

3. The Legal Basis 3.1. The Case Law of the European Court of Justice During its more than forty years of existence the European Court of Justice (hereafter ECJ) has spelled out in its case law the fundamental constitutional rules relating to the application of Community law (that is now the ‘first pillar’ of the European Union). Let me recall some of them. The first rule to remember is the one set out in Article 5 (ex 3b) EC according to which the Community possesses only the powers conferred upon it by the Treaty and, moreover, that for powers thus conferred relating to areas which do not fall within its exclusive competence, the Community must respect the principle of subsidiarity. This means that for any Community action the institution concerned must be able to point to a specific legal basis to support its action, and moreover be able to justify, when it has no exclusive competence, that the action proposed cannot be better achieved by the Member States. In the absence of such legal basis the action, if it was intended to be binding, will be declared null and void by the ECJ in accordance with the rules laid down in Article 230 (ex 173) EC, i.e. at the request, within certain limits, of the public law bodies or private persons mentioned therein. With regard to the subject matter we are 24  Commission Opinion of 26 January 2000 for the IGC on Adapting the institutions to make a success of enlargement, mentioned and quoted by M. Delmas-Marty, referred to in footnote 2. 25  See Document SI (1999) 800 of the General Secretariat EC Commission of 16 October 1999 (with reference to SN 200/99), at Nos. 40–58. In Tampere the European Council has agreed that a unit (EUROJUST) composed of national prosecutors, magistrates, or police officers, detached from each Member State, should be set up. EUROJUST ‘should have the task of facilitating the proper coordination of national prosecuting authorities and of supporting criminal investigations in organised crime cases, notably based on Europol’s analysis, as well as cooperating closely with the European Judicial Network, in particular in order to simplify the execution of letters rogatory’ (at No. 46).



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concerned with herein, the ECJ has stated in its 1998 judgment in Lemmens (albeit not in a nullity procedure under Article 230 but in a preliminary ruling procedure under Article 234 (ex 177) EC) that ‘in principle criminal legislation and the rules of criminal procedure are matters for which the Member States are responsible’.26 The Court goes on to state, however, that ‘it does not follow (therefrom) that this branch of the law cannot be affected by Community law’. That brings me to the second basic rule which is that, according to Article 10 (ex 5) EC, Member States are bound to take any action to ‘facilitate the achievement of the Community’s tasks’ and ‘abstain from any measure which could jeopardise the attainment of the objectives of this Treaty’. That obligation is, according to ECJ case law, imposed on all branches of the Member States, whether legislative, administrative or judicial, and constitutes moreover an obligation going both ways – which means that also the Community institutions are obliged to help the Member States to achieve their Community’s tasks. Thus, in its judgment in Zwartveld the Court held that the Commission was bound to cooperate with a Member State – in that case to allow a civil servant of the Community to act as a witness in national criminal proceedings – where that Member State was required, by virtue of Article 10 (ex 5) EC, to ‘take all measures necessary to guarantee the application and effectiveness of Community law, if necessary by instituting criminal procedures …’.27 A further consequence of this ‘duty of sincere cooperation’, as it is called, is that Member States are also obliged to cooperate with one another just like the Community institutions must cooperate with one another to achieve the objectives of the EC Treaty. In the area we are concerned with here, that duty of cooperation was made explicit by the Treaty of Maastricht in Article 209a EC, and even more so, after Amsterdam, in Article 280 EC which replaces Article 209a EC as was mentioned above. According to the present version of Article 280, the Member States shall take adequate measures to ‘counter fraud and any other illegal activities affecting the financial interests of the Community’ (para. 1), which shall be the same ‘as they take to counter fraud affecting their own financial interest’ (para. 2); they ‘shall coordinate their action … and to this end … organise, together with the Commission, close and regular cooperation between the competent authorities.’ (para. 3). On their part the Community institutions shall adopt, in the area concerned, the necessary measures to prevent and fight fraud in order to afford ‘effective and equivalent protection (of the Community’s financial interests) in the Member States’, which measures are however not to ‘concern the application of national criminal law or the national administration of justice’ (para. 4).

26  27 

Case C-226/97 Lemmens [1998] ECR I-3711, para. 19. Case C-2/88 Imm. Zwartveld a.o. [1990] ECR I-3365, para. 17.

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A third principle which in substance constitutes an application of the two foregoing principles, is that the Member States’ courts must set aside – at the occasion of litigation pending before them – any national measure, including legislation, which might jeopardise the objective of protecting the financial interests of the Community, that is (to use the wording which the Court applies in relation with the protection of Community rights of individuals) which might render such protection impossible or excessively difficult. That is why the Court held in its aforementioned Lemmens judgment that also criminal law rules, whether substantive or procedural, may be disapplied by a national court in a particular instance if they were to run counter to Community law. Moreover, as already stated by the Court in a judgment of 1989 in Commission v. Greece, the national authorities are bound in areas ‘where Community law does not specifically provide any penalty for an infringement or refers for that purpose to national laws, regulations and administrative provisions … to take all measures necessary to guarantee the application and effectiveness of Community law’.28 After which the Court stated ‘whilst the choice of penalties remains within their discretion (the Member States) must ensure in particular that the infringements of Community law are penalized under conditions, both procedural an substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive … Moreover, the national authorities must proceed, with respect to infringements of Community law, with the same diligence as that which they bring to bear in implementing corresponding national laws.’29 3.2. A Legal Basis for the Corpus Juris? The foregoing must have shown that, as stated explicitly in the Court’s Lemmens judgment,30 criminal legislation and criminal procedures are in principle matters for which the Member States are responsible, whereby the words ‘in principle’ refer to the fact that such attribution to the Members States, or rather lack of attribution of powers to the Community. However, as mentioned above, that should not prevent national courts from occasionally setting aside, also in the areas of criminal law and procedure (as in all other branches of the law), national law rules which are incompatible with Community law rules, or would make their application impossible or excessively difficult. Article 280, para. 4, EC confirms this principle with regard to the area of protection of the Community’s financial interests by excluding ‘measures of national criminal or the national 28  29  30 

Case 68/88, Commission v. Greece [1989] ECR 2965, para. 23. Ibid., paras. 24–25. Supra, footnote 26.



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administration of justice’ from the scope of application of the Community’s legislative action. It is therefore impossible in my view, how unfortunate that may be, to incorporate the provisions of the Corpus Juris into Community law by way of regulation or directive, and that holds true for both its substantive and procedural or institutional provisions. It cannot be argued in that respect31 that the substantive provisions of the Corpus Juris do not affect the application of national criminal law because they constitute European criminal law. For indeed to be ‘European’ criminal law, they must have been validly enacted under Community law, i.e. by virtue of legislative powers which the Treaty has conferred upon the Community and that is obviously not the case for matters of criminal law and procedure for which Article 280 EC declares the Member States to be competent even when the protection of the Community’s own financial interests are involved. Actually, to reserve those matters to the Member States is fully in line with the distinction which was, already before Amsterdam, consistently made in the ‘first pillar’ regulations and decision and the ‘third pillar’ conventions and protocols, which we have described above. And also after Amsterdam the distinction was confirmed in Regulation 1073/1999 on OLAF32 taken on the basis of the new version of Article 280 EC. Of course the fact that there is no direct legal basis in the EC to enact substantive and procedural criminal rules does not leave the Community unarmed, especially having regard to the new version of Article 280 EC which now offers a solid and uncontroversial legal basis for the adequate protection of the financial interests of the Community through administrative law provisions.33 As a matter of fact, already before Amsterdam the Council had taken many measures, as we have seen, giving broad internal and external investigative powers to the Commission and providing in an array of far-reaching administrative sanctions, including fines, which are laid down, with regard to external enquiries,34 in the aforementioned Council Regulations 2988/95 and 2185/96 (and in the sectoral rules they intend to coordinate),35 with regard to external investigations. Moreover, as stated in the Court’s Commission v. Greece judgment,36 when Community law has not specifically provided in any penalty for an infringement, or refers for that purpose to national law provisions, then the Member States are obliged to apply penalties analogous to those applied for similar infringements of national law (which can be criminal sanctions including custodial sentences eventually). See M. Delmas-Marty, 37 C.M.L. Rev. (2000), referred to supra footnote 2, at p. 352. Supra, footnote 18. 33  See already in connection with Article 24 (ex 40) EC where similar wording is used: Case C-240/90, Germany v. Commission [1992] ECR I-5383, para. 10 ff. 34  As for internal offences committed by Community officials or servants, the sanctions provided in Staff regulations apply. 35  Supra, footnotes 5 and 8. 36  Supra, footnote 28. 31  32 

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Heavy criminal sanctions may also have to be imposed by national law, even if they do not exist for similar national law infringements, if such a sanction would be required, e.g. because of the organised and strongly fraudulent nature of the Community law infringement, for the sake of making the penalty effective, proportionate and dissuasive. If the Member States were not to comply with that obligation, it is for the Commission, or another Member State, to initiate proceedings before the Court of Justice on the basis of Article 226 (ex 169), respectively Article 227 (ex 170) EC. 3.3. An Alternative Solution Those supporting the enactment of the Corpus Juris as it is, that is being firmly anchored in criminal law, may find the conclusion reached above unsatisfactory. That does not mean however, that the considerable effort deployed in drafting the Code has been made in vain since it remains possible to use the Code provisions in two ways, albeit in a different context: first, to flesh out the protection of the Communities’ financial interests by way of administrative provisions on the basis of Article 280 EC and, secondly, to organise the fight against transborder crime by way of conventional provisions on the basis of Article 31 TEU. To assess this proposal fully, we would like to point out that, in our view, the protection of financial interests can be organised as efficiently through administrative law provisions (subject to what is said above) as through criminal law provisions, and that the latter should be used preferably to penalize the most reprehensible crimes, i.e. those mentioned in Article 29 TEU. Choosing administrative law as the instrument to protect financial interests of the Communities against fraud and illicit behaviour in the Member States is not only beneficial because, as mentioned above, it offers a solid legal basis in Community law, but also the most efficient one since the new version of Article 280 EC allows the Community institutions to enact implementing measures through the qualified majority procedure referred to in Article 251 EC. Moreover, it permits the Community to take advantage of the vast experience which the Commission has acquired over the years in enforcing Community rules in the field of competition, and of the impressive amount of case law of the Community courts relating thereto. For indeed, as is well known, the prohibition of cartel agreements and of abuses of dominant positions (by virtue of Articles 81 and 82, ex 85 and 86, EC) occurs through a system of extensive investigative powers which the services of the Commission use in cooperation with the authorities of the Member States (see Articles 13 and 14 of Council Regulation No. 17 of 6 February 196237). Such investigations will often lead to a decision of the 37 

First Regulation implementing Articles 85 and 86 of the Treaty [1959–1962] OJ Spec. Ed. 87.



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Commission requiring the undertakings involved to terminate infringements, and imposing heavy fines if they are not. Those fines may be as high as 10 per cent of the turnover of the undertakings concerned, but they are nonetheless called in Article 15 of the Regulation, ‘not (to) be of a criminal law nature’ (para. 5). Naturally, the legality of such decisions can be reviewed by the CFI, at the request of the undertakings concerned, which court may also decide to cancel the fine or reduce or increase its amount (Article 17 of the Regulation). What I would like to suggest is to re-consider the provisions contained in the first part of the Corpus Juris – which define a number of fraudulent acts affecting the budget of the Community as criminal offences and impose penalties of a criminal nature – with a view of turning them into administrative infringements and administrative sanctions (therefore excluding custodial sentences) and stating explicitly (as in Regulation No. 17 referred to above) that they ‘shall not be of a criminal law nature’. The same examination should occur and the same result achieved with regard to the principle of fault as a basis for liability and the principle of proportionality of penalties (which is a general principle of Community law) which principles could be transformed as well into principles of administrative law. That leaves the question of enforcement, dealt with in the second part of the Corpus Juris relating to criminal procedure, including the establishment of an EPP. Here again, the model of criminal procedure could be abandoned in favour of a model of administrative enforcement, as embodied in Regulation No. 17 for the enforcement of European competition law. That should not mean that the structure now in force under that regulation (which is itself subject to re-examination) should be taken literally. There is at least one crucial point where the model of Regulation No. 17 should not be followed in my view, which is where it does not grant independent decisionmaking-authority to the competent service of the Commission and empowers it instead to exercise the combined functions of investigator, prosecutor and decision-maker. Although the ECJ, in its Pioneer judgment of 1983,38 did not consider that state of affairs to be contrary to Article 6, para. 1, of the European Convention of Human Rights, it nevertheless held that the Commission was bound to respect certain procedural guarantees.39 On that fundamental point the solution adopted by the Community legislature to make OLAF independent from the Commission, is certainly to be preferred, although it needs further improvement in view of carrying out a certain form of separation between the functions of investigation, prosecution and decision-making, as well as putting

C 100-103/80 Musique Diffusion française v. Commission [1983] ECR 1825, paras. 7–8. See further K. Lenaerts and J. Vanhamme, ‘Procedural Rights of Private Parties in the Community Administrative Process’, 34 C.M.L. Rev. (1997), pp. 531–569, at p. 555. 38  39 

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into place a sufficient form of judicial review regarding action on the part of OLAF during the preparatory stage of investigations (see infra). If an administrative (rather than a criminal) law approach were to be adopted to shape the Community’s policy ‘to counter fraud and any other illegal activities affecting the financial interests of the Community’ (Article 280, para. 1) – whereby, as suggested above, extensive use could be made of the Corpus Juris provisions relating to offences, penalties and principles of fault and proportionality (and, as a matter of fact, also of those relating to burden of proof and admissible evidence) – that approach might stand a better chance of being adopted by the Member States. It could also encourage the Member States to fully accept and support to the criminal law approach for fighting serious transborder crimes (that is beyond the area of crime related to the protection of the Communities’ financial interests) as it is envisaged in Article 29 TEU, and therefore to not only adopt but also ratify Conventions to that effect within a reasonable period of time. If that were to happen, benefit could again be drawn in that respect from the work undertaken in connection with the Corpus Juris, more particularly from the solution adopted in the Code with regard to the attribution of competences of investigation and prosecution (which is seen as a matter for the EPP, as distinguished from the competence of trying the case and imposing criminal penalties which firmly remains a matter for the judicial authorities of the Member States) and from the provisions in the Code relating to the establishment of an EPP composed, as mentioned at the outset of this contribution, of an European Director of a Public Prosecutor’s office in Brussels and of European delegated Public Prosecutors’ units located in e.g. the capital of each Member State (the latter to be part of the national prosecuting offices but to form a separate entity with its own priorities and, possibly, own financing coming from the EU). Such a ‘combined’ EPP would then, as also recalled earlier, have jurisdiction for the whole territory of all of the Member States seen, in the words of Article 29 TEU, as a single ‘area of freedom, security and justice’, which implies that any action undertaken by any component (Community or national) of the EPP would take effect for the whole of that territory. Furthermore, use could also be made of the provisions in the Code which provide criteria for the allocation of cases, ratione loci, to one or another ‘national’ unit of the EPP and, as a consequence, to the national criminal court where that EPP’s unit is affected to. Finally, and most importantly, the provisions in the Code relating to judicial control during the preparatory stage of the proceedings may offer considerable guidance as well, as will be mentioned later on. To the extent that provisions of the Code are taken over, as suggested above, they will obviously have to be adopted in accordance with the ‘third pillar’ Treaty provisions on judicial cooperation in criminal matters (Article 31 TEU) and thus by way of one of the legal instruments provided therein (Article 34 TEU), i.e.



constitutional conditions for a public prosecutor’s office 583

framework decisions or conventions, which must be approved by unanimous vote. That may create a problem with regard to the Code provisions relating to criminal procedure, in particular those on the establishment of an EPP, as it is not fully certain whether the enumeration of subject matters in Article 31 (non-exhaustive, it would seem, as it is preceded by the word ‘include’) and the reference in Article 34, para. 2, to the ‘objectives of the Union’, as broadly described in Article 29, constitutes a sufficient legal basis for such criminal jurisdictional matters (an issue for which the ECJ has jurisdiction only ‘under the conditions provided for by Article 35’, thus Article 46 TEU). However that issue is to be determined, a valid legal basis for such far-reaching criminal reform could be found, it would seem, in Article 40 TEU which would permit some Member States to establish a closer form of cooperation in the field of combating transborder crimes. In conclusion, rather than to use the criminal law approach for the protection of the financial interests of the Communities, it is more appropriate, for reasons of legal certainty, to use the administrative law approach for that area, and to resort to criminal law provisions for the protection against (even more) serious cross border crimes. For both issues benefit can be drawn from the work undertaken by the group of academics in the preparation of the Corpus Juris. As a final note in this respect, it may be worthwhile to mention that the preference for administrative law enforcement of offences with primarily financial consequences becomes now also apparent in areas of ‘genuine’ transborder crime, such as those relating to drugs and money laundering, where, according to some authors, the administrative strategies are ‘being blessed with rising popularity’ for a number of reasons.40

4. Protection of Human Rights and of Due Process 4.1. The Case Law of the ECJ as Confirmed by Article 6 TEU As early as 1970 the ECJ has recognized, in its Internationale Handelsgesellschaft 41 judgment, that ‘respect for fundamental rights forms in integral part of the general principles of Community law protected by the Court of Justice. The protection of such rights, whilst inspired by the constitutional traditions common to the Member States, must be ensured within the framework of the structure and objectives of the Community’. This ruling has later been confirmed in numerous judgments whereby the reference to the constitutional traditions 40  See M. den Boer’s book review of N. Dorn, ed., ‘Regulating European Drug Problems. Administrative Measures and Civil Law in the Control of Drug Trafficking, Nuisance and Use’, in 2000 MJ at p. 101. 41  Case 11-70, Internationale Handelsgesellschaft [1970] ECR 1125, paras. 3–4.

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was enlarged to include ‘guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories. The Convention [i.e. the ECHR] has special significance in that respect …’, as the Court held in Kremzov.42 The ECJ’s reference to the European Convention of Human Rights (ECHR) is even more important since the Court has indicated, in its Opinion 2/94,43 that accession of the EC to the ECHR, through a Community act based on Article 308 (ex 235) EC, is not legally possible in the present state of Community law. In its case law the Court has further acknowledged that, although it has no jurisdiction in general with regard to the compatibility of national legislation with the fundamental rights, it does have such jurisdiction ‘where national legislation falls within the scope of Community law’, thus again in Kremzov, following earlier rulings of the Court as in Wachauf,44 that is e.g. where that legislation was enacted to justify national measures restricting free movements of goods by virtue of the legal grounds enumerated in, and thus within the limits of, Article 30 (ex 36) EC.45 So far, the following principles have been recognized by the ECJ to be part of the general principles of Community law: freedom of expression, freedom of religion, freedom of association, the right to privacy, family life, medical confidentiality and protection of the home, the right to property, the freedom to pursue one’s trade or business, the principle of non-retroactivity of penal measures, the right to a judicial remedy for the protection of one’s Community rights, a series of rights known as ‘rights of defence’ and of course the principles of equality and of proportionality.46 Quite an impressive list, one must admit, which moreover remains open-ended. At the occasion of the Maastricht Treaty the foregoing case law of the ECJ has been underpinned by a special Treaty provision contained in Article F, para. 2, TEU stating that the ‘Union shall respect fundamental rights, as guaranteed by the [ECHR] and as they result from the constitutional traditions common to the Member States, as general principles of Community law’. In the Amsterdam Treaty that provision became Article 6, para. 2, TEU and is preceded now by a paragraph to the effect that ‘The Union is founded on the principles of liberty,

C-299/95, Kremzow v. Austria [1997] ECR I-2629, para. 14. Opinion 2/94 [1996] ECR I-1759. 44  Case 5/88, Wachauf [1989] ECR 2609, para. 17. 45  See the Court’s judgment in Case C-368/95 [1997] ECR I-3689; see also B. De Witte, ‘The Past and Future Role of the European Court of Justice in the Protection of Human Rights’, in P. Alston, ed., The EU and Human Rights (1999), pp. 859–897, at pp. 873 ff. on the as yet unresolved question as to whether national legislation implementing a directive falls within the scope of Community law. 46  B. De Witte, supra, footnote 45, at p. 868; K. Lenaerts and P. van Nuffel, supra, footnote 12, at pp. 548–550, No. 14-065. 42  43 



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democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States’.47 Under the provisions of the Maastricht Treaty, the ECJ was not given powers of judicial control, in spite of the general wording of Article F(2) quoted above, with regard to the application of ‘second’ and ‘third pillar’ provisions (with the exception only of the final provisions). The Amsterdam Treaty has changed that in some respects. In addition to the aforementioned changes contained in Article 35 TEU relating to the jurisdiction of the ECJ with regard to legal instruments taken under Title VI relating to the jurisdiction of the ECJ with regard to legal instruments taken under Title VI on police and judicial cooperation, that Treaty has brought other changes as well. One of them is that, pursuant to Article 46 (ex L), the Court has now also jurisdiction with regard to Article 6(2) (ex F(2)) TEU. However, that amendment has for consequence only, that the ECJ may now use that clause as a written basis for its fundamental rights case law.48 But it does not bring about substantive changes due to the restrictive wording of Article 46, which states, under d), that the Court can only apply Article 6(2) ‘insofar as the Court has jurisdiction under the Treaties establishing the European Communities and under this [EU] Treaty’ (thus e.g. within the limited context of Article 35 TEU as explained above). Accordingly, the change of Article 46 ‘does not, as such, allow the Court to review measures under the second and third pillars that fall generally outside the jurisdiction of the Court’.49 Another amendment contained in the Amsterdam Treaty which has some bearing on our subject is the incorporation in Article 13 (ex 6a) EC of a general non-discrimination clause to the effect that ‘the Council, acting unanimously on a proposal of the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation’. That general clause comes in addition to the basic nondiscrimination clause already contained in the EC Treaty, from the very outset, in Article 12 (ex 6) EC according to which ‘any discrimination on grounds of nationality shall be prohibited’. As appears from a comparison of the wording of both clauses, the intention of the Member States, when accepting the new Article 13 EC, was clearly to avoid any implication that the Article could be regarded as a clause having direct effect, at least as long as no implementing

47  See also Article 309 (ex 236) EC where the Council is empowered to take some action by a qualified majority ‘where the existence of a serious and persistent breach by a Member State of principles mentioned in Article 6(1) of the [TEU] has been determined in accordance with Article 7(1) of that Treaty’, a provision much quoted lately with regard to recent political events in Austria. See further P. Gilliaux, ‘l’Union européenne, à l’épreuve de gouvernements liberticides?’, Journal des Tribunaux (2000), pp. 449–454. 48  B. De Witte, supra, footnote 45, at p. 885. 49  Ibid.

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measures have been taken (which must occur by unanimous decision, as opposed to Article 12 where a qualified majority suffices).50 The most important change by the Amsterdam Treaty with regard to the area of the law we are concerned with here, is the fact that the entire part of Justice and Home Affairs dealing with immigration and movement of persons was transferred from the third to the first pillar, i.e. to Article 61–69 (ex 73i–73q) of the EC Treaty. This change has for effect that those provisions come now within the jurisdiction of the ECJ, albeit in accordance with rules on preliminary judgments which have a somewhat more limited scope than the general rules under the EC Treaty (Article 68, ex 73p, as compared with Article 234, ex 177, EC). It will appear from the foregoing that the role which the ECJ is allowed to play under the third pillar, as laid down primarily in Article 35 TEU, remains limited, particularly so because preliminary rulings will be possible only where the individual Member States have accepted it by a special declaration (para. 2) and because institutions, other than Member States and the Commission, and private persons are not allowed to bring nullity actions before the ECJ (para. 6, as compared with Article 230, ex 173, EC). There are other limitations as well, namely that no action can be brought against a Member State for failure to comply with an obligation under the third pillar provisions of the EU Treaty (compare the ‘diplomatic clause’ in para. 7 of Article 35 with Article 226, ex 169, EC) or that, where the Court has jurisdiction with regard to framework decisions (paras. 1 and 6), it may not use it to give them direct effect (Article 34, para. 2 sub b; which, in my view, should not necessarily prevent national courts from construing their national law in conformity with TEU primary and secondary law). As a result of all this, the Court’s judicial control to verify whether fundamental rights are respected by common action taken, under Article 31 TEU, in the field of judicial cooperation with regard to criminal matters (as opposed to administrative measures taken by the Community pursuant to Article 280 EC for which the Court has full jurisdiction; see infra) remains equally limited, at least for the time being, and this notwithstanding the sensitive nature which such measures may have.51 4.2. Procedural Rights of Private Parties Procedural rights of private parties do exist in the Community’s administrative process by virtue of the ECJ’s case law described above. However, in the absence of special legislation, protection of such rights can only be obtained at the end of the administrative process, that is when a final decision has been adopted, Ibid., at p. 884. See more generally, and with regard to Belgian law, M. De Rue, ‘Les droits de l’homme et les méthodes modernes d’enquête policière’, Journal des Tribunaux (2000), pp. 321–330. 50  51 



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unless a decision taken in the course of that process is liable to adversely affect the interests of private persons. For indeed, the case law of the ECJ allows an action for nullity to be brought immediately against preparatory decisions which tend to definitively ‘produce legal effects vis-à-vis third parties’ and provided that they are ‘of direct and individual concern’ to those third parties’ in the sense of Article 230 (ex 173) EC52 (cfr. infra). The procedural rights to be so-enforced have been developed by the ECJ in ‘several areas of substantive law, such as competition law applicable to undertakings, customs law, Community aid schemes, state aid, intellectual property rights (trade marks in particular) and the combating of fraud’.53 Apart from the general right of access to a court, to be derived from Article 6(1) ECHR, the procedural rights which have been recognized in the ECJ’s case law relate to the right to a fair hearing by the administrative authority concerned and the rights pertaining to the individual’s identity and property. As for the first right, that to a fair hearing, the ECJ has held that to guarantee such right is ‘a fundamental principle of Community law which must be respected in all circumstances’. More particularly, the ‘rights of the defence’ require that during the administrative procedure the individual concerned is ‘afforded the opportunity to make known his views on the truth and relevance of the facts, charges and circumstances relied on by the Commission’.54 In its case law the ECJ has confined that fundamental principle to proceedings ‘in which sanctions may be imposed’,55 an expression which the CFI, in its 1994 Lisrestal judgment,56 has constructed to mean ‘proceedings which are initiated against a person and are liable to culminate in a measure adversely affecting that person’. Apart from the protection granted by this case law, private persons may of course enjoy a higher standard of protection by virtue of special legislation, as exists more particularly in the area of trademarks and in that of competition law (see e.g. Article 19 (1) of the aforementioned Regulation No. 17). As for the substance of the right to a fair hearing, both legislation and case law grant a right of access to documents, insofar as those are not of a confidential nature.57 With respect to the latter point, the ECJ has emphasised, however, that Article 287 (ex 214) EC must be interpreted in such a way that the right of access to the file is not deprived of its substance, which means according to the CFI that only the sensitive parts of the documents must be safeguarded.58 A related K. Lenaerts and P. Vanhamme, supra, footnote 39, at p. 531. Ibid., at p. 532. 54  Ibid., at p. 534 with references. 55  Ibid., at p. 535 with reference. 56  Case T-450/93, Lisrestal v. Commission [1994] ECR II-1177, para. 42. 57  Cfr. Article 287, ex 214, EC; see further, with regard to competition cases, Commission Notice 97/C23/03 cited by K. Lenaerts and P. Vanhamme, op. cit., at pp. 540ff. 58  K. Lenaerts and P. Vanhamme, op. cit., at p. 544. 52  53 

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question is to know which (non-confidential) documents are of such importance to the private party concerned that they must be able to influence the outcome of the proceedings and who decides, during the administrative proceedings, which documents are of such a nature. In that respect the CFI has held in the so-called ‘Soda-ash’ cases that ‘it cannot be for the Commission alone to decide which documents are of use for the defence’ and that ‘the general principle of equality of arms … presupposes that in a competition case the knowledge which the undertaking concerned has of the file is the same as that of the Commission’.59 In the meantime the Commission has indicated however, that access to the file in competition cases will not be limited to documents which the Commission regards as ‘relevant’ to an undertaking’s right of defence.60 As for a private party’s procedural right to its identity and property as against the case-handling administrative authority, the main subject to be mentioned here is that of the inviolability of the home. The question came up in the case law of the ECJ with respect to the access to business premises in competition cases. In several related judgments the Court held that ‘although the existence of that right must be recognized in the Community legal order as a principle common to the laws of the Member States in regard of the private dwellings of natural persons, the same is not true in regard to undertakings, because there are not inconsiderable differences between the legal systems of the Member States in regard of the nature and degree of protection afforded to business premises against intervention by the public authorities’ and that ‘[n]o other inference is to be drawn from Article 8 [ECHR]’.61 The latter part of the ruling has however been contradicted in later case law of the EcrtHR relating to the inspection of premises which comprised, besides a bedroom, several offices.62 As mentioned before, private parties will be able to initiate direct proceedings for nullity of a Community act before the ECJ (that is in first instance the CFI) where the act was intended to produce legal effects against a party which, moreover, is directly and individually concerned (Article 230, ex 173 EC). The latter requirement, although interpreted by the Community courts in a rather narrow way, should not constitute a real hurdle where infringements of procedural rights are at issue. Procedural rights are indeed, by their very nature, of direct and individual concern to an applicant against whom a decision is directed. That may be different from infringements of human rights which may be the result of general legislation, i.e. of normative acts, which is restrictive of Ibid., at p. 546. Ibid., at p. 547. 61  Joined Cases 46/87 and 227/88, Hoechst v. Commission [1989] ECR 2919, paras. 17 and 19; further references K. Lenaerts and P. Vanhamme, op. cit., at p. 552. 62  Case Chappel v. UK, 30 March 1989, Series A, Vol. 152. See also Case Niemitz v. Germany, 16 December 1992, Series A, Vol. 251-B (with respect to a law firm). 59  60 



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individual rights, e.g. one’s right to pursue a trade or business activity. It will normally not be open to private applicants to bring a direct action for nullity against such acts on the basis of Article 230 (ex 173) EC (but they may bring such an action against individual decisions addressed to them). By contrast, the validity of normative acts may be attacked by private parties through the preliminary ruling procedure initiated by a national court on the basis of Article 234 (ex 177) EC where that court believes the determination of the issue to be of importance for its judgment. Thus, e.g., the application for nullity brought on the basis of Article 230 (ex 173) by German banana importers who thought that their fundamental rights had been infringed by a Regulation on the common organization of the market in bananas, was declared inadmissible by the ECJ for lack of direct and individual concern; however, after the importers went on to challenge the regulation before the German administrative courts, the issue was referred to the ECJ by way of preliminary question.63 However, that does not prevent many from arguing that the protection of human rights before the ECJ (and CFI) should be enhanced, both in scope and intensity.64 The other requirement – which is that acts, in order to be eligible for an action for nullity to be brought directly before a Community court, must be intended to produce legal effects – creates more of a hurdle, especially for the protection of procedural rights. According to the ECJ’s case law this means that the acts must be ‘capable of affecting the interests of the applicant by bringing about the distinct change in his legal position’.65 Therefore, an action will not lie against merely confirmatory acts, resolutions or internal instructions; by contrast an action may lie against a preparatory act if it definitively lays down the position of the institution which adopted it.66 The latter point has been clarified at the occasion of case law in competition case. Thus e.g., the initiation of an administrative procedure with regard to undertakings under investigation, or the notice given by the Commission inviting interested parties to give comments on its intention to authorise a cartel agreement, are regarded to be merely preparatory acts: irregularities in such acts may be raised only later when an action is brought against the decision concluding the procedure.67 But an action will lie forthwith against a decision by the Commission not to treat certain documents as confidential during the administrative procedure and therefore to disclose them to third parties, or against a decision whereby the Commission requests an undertaking to provide information, or whereby B. De Witte, supra, footnote 45, at p. 876. Ibid., at pp. 876 ff. and pp. 878 ff. 65  Case 60/81, IBM v. Commission [1981] ECR 2639, para. 9. 66  K. Lenaerts and D. Arts, Procedural Law of the European Union, R. Bray, ed. (London 1999), at pp. 144 ff. 67  Ibid., at pp. 147 ff. 63  64 

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it withdraws an exemption from a fine pursuant to Article 15(6) of Regulation No. 17.68 This case law may find application as well in matters decided by OLAF in the case of administrative investigations. For example, a decision of OLAF to refer a case, in the course of its administrative enquiry, to the competent judicial authority of a Member State because it would seem to give rise to criminal liability, might be a decision which can be immediately attacked before the CFI for infringements of procedural rights. It may be clear from the foregoing that the protection of procedural rights and of human rights is firmly anchored in the case law of the European courts with regard to actions taken at the end, or even in the course of, administrative procedures and that all this fully applies to acts taken by OLAF or the Commission. Obviously, these case law rules would apply as well, one may think a fortiori, to criminal law procedures established within the framework of the ‘third pillar’ provisions if judicial control on the part of Community courts were possible, which however, as we have seen, will be the case in a limited number of cases only, at least for the time being.69 As a matter of fact, that fundamental point constitutes an additional argument for organising the combat against fraud affecting the financial interests of the Community through administrative law procedures pursuant to Article 280 EC, as it appears from the foregoing shows that the legal protection of fundamental rights, including procedural rights, is also safeguarded with regard to administrative procedures, and not the least in instances where administrative fines, or disciplinary sanctions, have been imposed. 4.3. A Priori Judicial Control in the Preparatory Stage of Criminal (and Administrative) Proceedings According to the Corpus Juris, the preparatory stage of proceedings with regard to criminal offences defined in the Code lasts from the initial investigations conducted by the EPP until the decision to commit the case to trial (Article 25). During the investigation into such offences the coercive measures listed under Article 20(3) of the Code are admissible. Those are: questioning of the suspect, collection of documents and of computer-held information, a request to order an expert enquiry, searches, seizures and telephone tapping, hearings of witnesses, notification of charges to the accused and requests for a person’s Ibid. In that respect one should point to the legal uncertainty which surrounds the question of judicial control regarding action on the part of Europol which is part of the third pillar. To the extent that Europol would be allowed to accomplish own acts of police investigation (cfr. Article 30, ex K.2., para. 2, c TEU) judicial review by the Community judiciary would not be possible at the request of a private person adversally affected: see Article 35, para. 6 in combination with para. 5. See further the provisions on liability and legal protection in Articles 38 ff. of the Europol Convention referred to earlier in footnote 22. 68  69 



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remand in custody or remand on bail. Throughout the preparatory stage, judicial control is to be exercised by an independent and impartial judge, the ‘judge of freedoms’ (who does not, as in certain legal systems, take the lead of the investigations however). Whenever a measure ‘restricting rights and fundamental freedoms recognised by the [ECHR] … is taken at this stage … which affects a witness or the accused … it must first [emergency excepted] be authorised by the judge of freedoms, who checks that the measure is lawful and regular as well as that the principles of necessity and proportionality are respected …’ (Article 25(2)). At the end of the preparatory stage the decision of the EPP to commit the case to trial is also to be examined by the judge ‘who checks the lawfulness of all the proceedings, excludes if necessary any evidence obtained in breach of the rules [on admissible evidence set out in Article 32] and seises the court of trial according to the rules [intended to avoid conflict of jurisdiction] set out [in Article 26]’ (Article 25(3)). The latter rules contain criteria for the choice of jurisdiction according to which conflicts of jurisdiction are to be settled. Those are: ‘the State where the greater part of the evidence is to be found; the State of residence or of nationality of the accused (or the principle persons accused); the State where the [economic] impact of the offence is the greater’ (Article 26(2); the word ‘economic’ is put here between brackets as it is a reminder that the Code is only concerned with criminal offences affecting the Communities’ financial interests whereas it is suggested herein that the criminal procedure be reserved for serious transborder crimes). In the system of the Corpus Juris the judge of freedoms is a national judge appointed by each Member State from the national court where that Member State’s European delegated Public Prosecutor is based (Article 25 (1)). However, in a contribution written by one of the academics who prepared the Code, convincing reasons are given to amend the solution adopted in the Corpus on one point.70 That point concerns the competence of the judge of freedoms to select the national criminal court which will be designated as the competent trial court on the basis of the aforementioned criteria, as enumerated in Article 26 of the Code. The proposed amendment tends to grant that jurisdiction to an European court which could be a special chamber of the CFI or a newly established European tribunal (possibly to be constituted as a circuit court that sits not necessarily in Luxemburg but can also sit, if appropriate, in another Member State). The major reason for the amendment is that the choice of jurisdiction, made pursuant to the criteria referred to above, implies a large margin of discretion anyway – which is to be used not only having regard to the needs of an effective prosecution but also taking into account the interest of the accused (as to ‘re-socialisation’ and 70  C. Van den Wyngaert, ‘Corpus Juris, parquet Européen et juge national vers une chambre préliminaire Européenne?’, 7 AGON (1999), No. 23.

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familiarity with the language and with the applicable legal system) as well as the interest (both human and financial) of the victim(s) – and that the amendment is therefore necessary in order to assure that such choice of jurisdiction will be made in a uniform and impartial way, that is without any prejudice in favour of the lex fori. Such an European court should moreover be given competence to pronounce itself on the question of sufficiency of evidence to justify a referral of the case to a national trial court. By contrast, the jurisdiction of the national judge of freedoms of the place where the European delegated Public Prosecutor is located, could, according to the author of the amendment, be maintained with regard to judicial review of the regularity of measures taken in the course of the preparatory stage and enumerated, as we have seen, in Article 20(3) of the Code. This amendment seems indeed to be an improvement.

5. Concluding Remarks On the basis of the foregoing, we are of the opinion that the proposals contained in the Corpus Juris,71 subject to the amendment just mentioned, constitute a valid point of departure for further discussion. Not so much, we believe, with regard to the investigation, prosecution and trial of offences affecting the financial interests of the Communities which may be adequately protected through administrative (substantive and procedural) law rules enacted pursuant to Article 280 EC. But very much so, with regard to the investigation, prosecution and trial of the serious transborder crimes referred to in Article 29 TEU, for which efficient criminal procedures are to be established as well as adequate legal protection is to be ensured, both at the preparatory stage and upon completion of such criminal procedures. One final word with regard to the protection of fundamental rights, substantive and procedural, in the preparatory stage of internal administrative investigations carried out by OLAF within the Community institutions. When those investigations let appear acts which may give rise to criminal liability, OLAF must transfer the investigation for those aspects of the file to the judicial authorities of the Member State where the Community institution involved is located. Such authorities will then be confronted with the immunity of persons and premises pertaining to the Community and will have to apply for permission from the Community to carry out hearings, seizures, on-the-spot investigations and the like. We would suggest that those matters be turned over, as soon as possible, to (the head of) an EPP (who cannot be the director of OLAF which, as said above, is an administrative investigation agency and not a judicial instance). 71  As mentioned supra in footnote 2 amendments have been proposed by the drafters of the Corpus but not, it would seem, on the point mentioned in the preceding paragraph of the text.



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Such a fully independent EPP must be appointed at the highest judicial level of the Community and therefore at the level of the ECJ. Such appointment would be the first step towards the establishment of a full fledged EPP as envisaged hereinbefore.

The Januses of Justice: How Prosecutors Define the Kind of Justice Done across Europe Marianne Wade Senior Researcher, Max Plank Institute for Foreign and International Criminal Law, Freiburg, Germany

1. Introduction The image of a prosecutor does not appear to excite a great deal of interest on the European research landscape. Even on a national level, empirical research in particular has been very limited. In stark contrast to their counterparts in some American states, European prosecution services were clearly perceived as an administrative organ1 which prepares cases for court: an institution filtering cases based on dry legal principles;2 prosecutors thus individuals deciding between options unworthy of closer observation. Accordingly little attention was paid to what public prosecution services actually do; certainly not by academics, and international organisations concerned themselves, if at all, with questions of political independence.3 The first edition of the European Sourcebook on Crime and Criminal Justice Statistics, however, also undertook to record the data 1  It has been asserted in English language literature, that prosecutors on the Continent are part of the judiciary (see e.g. A. Ashworth and J. Fionda, “The New Code for Crown Prosecutors: (1) Prosecution, Accountability and the Public Interest”, Criminal Law Review (1994) pp. 894–904). This is largely incorrect with most prosecution service bound strongly by the Executive via the Ministries of Justice, by no means enjoying the kind of independence associated with the Judiciary. The misunderstanding has probably arisen due to the obligation of objectivity imposed upon continental prosecutors and the controversial discussion surrounding their position within the state framework, which has led them to be declared e.g. “a judicial agency of the executive” in Germany. Even where, as in France, they are formally members of the judiciary it would be misleading to think of them simply in these terms because they lack the Constitutional protection of judges and are strongly administratively bound to serve their head of service, the Justice Minister (see e.g. J. Hodgson, French Criminal Justice (Oxford and Portland 2005), pp. 75 – 85). 2  See e.g. J. Rogers “Restructuring the Exercise of Prosecutorial Discretion in England”, 26(4) Oxford Journal of Legal Studies (2006) pp. 775–803 at 777. 3  Council of Europe, Report of the Committee of Experts on the role of the Public Prosecution in the Criminal Justice System PC-PR (97) 1 Rev. 3 (Strasbourg 1997).

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available concerning the prosecution stage, which was in many ways found to be inadequate. The statistics and legal information gathered did, however, provide strong indication that judicial power had shifted to the prosecution stage. As a result the responsible researchers4 decided to attempt a closer look believing that understanding what prosecutors do is key to understanding how justice is done across Europe today. In the meantime a number of legal comparisons of the prosecutorial role have emerged.5 The study reported upon here is the only study on prosecution services so far to go beyond a comparison of legal powers in order to establish the role factually played by prosecutors within European criminal justice systems (CJSs). The findings presented result from a three year study, the aim of which was to examine the function of prosecution services across Europe by examining the English and Welsh, French, Dutch, German, Polish and Swedish CJSs.6 Given the findings presented and the importance of discussions as to the role of the prosecution in relation to international criminal law,7 surrounding the international recognition of prosecutorial decisions (e.g. in the Schengen framework (see the Gözütok8 and Brügge9 cases before the European Court of Justice)) as well as the stalled discussion surrounding the EU’s European Public Prosecutor, it is hoped that the discussion of prosecutorial power will continue and intensify. The results of the study presented here provide a solid, factual basis for such deliberation.

4  The original group behind the European Sourcebook were: Martin Killias (Switzerland), Chairman of the group, Gordon Barclay (UK), Hanns von Hofer (Sweden), Imre Kertesz (Hungary), Max Kommer (The Netherlands), Jörg-Martin Jehle (Germany), Chris Lewis (UK), Pierre Tournier (France). Joined by the following researchers for the first full Sourcebook: Marcelo Aebi (Switzerland), Andri Ahven (Estonia), Uberto Gatti (Italy), Zdenek Karabec (Czech Republic), Vlado Kambovski (Former Yugoslav Republic of Macedonia), Alberto Laguia Arrazola (Spain) and Calliope Spinellis (Greece), Paul Smit (The Netherlands) and Bruno Aubusson de Cavarlay (France). 5  K. Ambos, L. Arbour, A. Eser, A. Sanders, The Prosecutor of a Permanent International Criminal Court. International workshop in co-operation with the Office of the Prosecutor of the International Criminal Tribunals (ICTY and ICTR) (Freiburg im Breisgau 2000); P. Tak, Tasks and Powers of the Prosecution Services in the EU Member States (Nijmegen 2004); T. Vander Beken, M. Kilchling, The Role of the Public Prosecutor in the European Criminal Justice Systems (Brussels 2000); Finjaut et. al (2000), in Volume 8/3 of the European Journal of Crime, Criminal Law and Criminal Justice. 6  It was carried out at the in co-operation with partners in each of the study countries. 7  D.D.N. Nsereko, “Prosecutorial Discretion before National Courts and International Tribunals”, 3 Journal of International Criminal Justice (2005) pp. 124–144 at 135 onwards; L. Côté, “Exercise of Prosecutorial Discretion in International Criminal Law”, 3 Journal of International Criminal Justice (2005) pp. 162–186, esp. 168 -179; A.M. Danner, “Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court”, 97 American Journal of International Law (2003) pp. 510–552, 534 on. 8  Gözütok. Case C-187/01 before the European Court of Justice, click on case number at . 9  Brügge. Case C-385/01 before the European Court of Justice, click on case number at .



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The central role of a prosecution service is to decide whether or not to bring a case to court. The basic function is, of course, to decide whether in view of the evidence available a case should be decided upon by a court.10 Thus if a case is insufficient in evidential terms, a prosecutor should decide to end the case without bringing it to court so as not to waste court time and to (ideally) save an innocent person from further trauma through suspicion and trial – the so-called “harms of process”.11 Alternatively the prosecutor can decide to bring a case to court, therewith taking it to the next level of the criminal justice chain. For the purpose of this essay, this is also regarded as a prosecution level case-ending decision. Prosecutors, however, also have a number of further options in dealing with cases. This paper aims to present the comparative study results displaying the variety of procedures available, the ways in which prosecutors are using such options and to provide a brief evaluation of the implications this has for the “end product” of criminal justice systems: justice being done.12

2. Methodology The study was performed by a group of researchers consisting of at least one expert from each country with an in-depth knowledge of that system and experience in doing comparative research. The countries studied were selected as representatives of the major legal families found within Europe and to provide examples of small and large countries. The heart of the study was an electronic, structured questionnaire13 which was filled in by a country representative drawing upon the law, academic literature, empirical studies, professional guidelines as well as interviews and discussions with practitioners.14 An initial draft questionnaire was created based upon a literature analysis of all the systems to be studied. The fundamental project idea was to find common concepts and categories which could be used to analyse the 10  See e.g. M. Burton, “Reviewing Crown Prosecution Service decisions not to prosecute”, Criminal Law Review (2001) pp. 374–384 at 382. 11  Rogers (2006), loc. cit., p. 787 and fundamentally M. Feeley, The Process is the Punishment (New York 1979) at 241–243. 12  The fundamental presumption is that these aim to “bring criminals to justice”, i.e. to provide justice see e.g. the declaration of the UK Presidency of the EU 2005 – UK Presidency (2005) Justice and Home Affairs Purpose Statement. Available online at: as to the purpose of justice and home affairs co-operation within the EU or the current Home Secretary’s mission statement – see Home Secretary (2006) Police Mission Statement available online at: to the police. 13  The questionnaires can be found online under www.kriminologie.uni-goettingen.de/pps., whilst the country reports and an over-arching analysis are available in J.-M Jehle and M. Wade, Coping with Overloaded Criminal Justice Systems – The Rise of Prosecutorial Power (New York 2006). 14  In particular prosecutors, judges and police officers.

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instruments concerned so that one and the same questionnaire could be used to gather equally valid information from very different systems with strongly varying legal frameworks and data collection. Like the draft questionnaire, all evaluation mechanisms used were discussed in detail by the entire research group and amended accordingly; thus producing a study instrument and basis for comparison independent of any one system. The questionnaire required statistics from 1993 until 2002 in order to cover an adequate time for analysis whilst including the most recent statistics available in all the study countries. Informational data (especially detailing the law and guidelines) was based upon the status quo in 2002 but was expanded upon and provided for any other period for which it was necessary in order to explain any changes occurring within the study time span. The data gathered covered all aspects of the public prosecution service (pps) from political accountability to its role before court; the powers given to prosecution services to end cases forming one focal point. Detailed information was also required about police structures and powers15 as well as covering a variety of procedures leading to court decisions and the responsibilities of other criminal justice system institutions. Naturally this was vital as duties carried out by prosecutors in one country found their pendant in the work of another institution elsewhere. As a precursor to this the study necessitated an examination of which types of behaviour are dealt with by the CJS because the treatment of offences of high statistical significance varies between systems, e.g. thefts of < € 50 (Poland). Statistical data drawing upon national sources was requested in the same categories with every effort being made to ensure that comparable data was used (see infra for details of the adjustments made). The questionnaire was complemented by country reports to provide a country-specific overview. Data was checked for coherence and adequacy before being collated in 6-country evaluation tables categorising each country’s situation according to the core feature of the law, wider regulation, working practice etc. This comparative analysis focussed upon the following questions: – Which institution has effective control over the investigative stage? – How and by what means are rising case-loads being dealt with by CJSs complaining of a shortage of resources? – How do the common-law, continental and Eastern European CJSs compare today? – What function is played by the police, the prosecution services and what is left to the courts in relation to ending cases?16 15  Of particular relevance when comparing the British system to Continental ones see e.g. Rogers (2006), loc. cit., p. 776 16  The analysis was then checked by partners to ensure the accuracy of interpretation. It was later validated in dialog with prosecutors and policy-makers from the study countries and final



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A scheme for presenting statistics to ensure the greatest compatibility was developed. In particular the cases in which no suspect was identified were removed from French and German statistics to make them compatible with the remaining countries. For England and Wales, the Netherlands and Sweden police and prosecution statistics had to be collated. The benefits of an expert network, filling out a common questionnaire on this level are that major national trends in the area studied can be identified and compared. These were then validated by practitioners to a certain extent.17 Above all a picture was won of what goes on in CJSs in Europe today, which functions are played by which institutions and what the shifts in their roles have been and seem set to be. The project approach of relying not only upon legal definitions but striving to gain a meta-picture of law in action (in particular by analysing guidelines and working practice) further means that more than what is often mere legal fiction was depicted. A study at the national level can, however, only provide initial insights. As a result the study raises a number of further questions, the answers to which will have to be explored by detailed empirical studies. The highly dynamic nature of the area being studied, in particular in Britain and in Poland, mean it is unlikely that the situation reflected there is more than a transient snap-shot. Nevertheless the trends identified provide a valuable account of how or what kind of results are or justice is actually being achieved by CJSs across Europe and thus has implications for our understanding thereof.

3. Findings 3.1. A European Prosecutor’s Options The study found prosecutors to have up to seven basic options in dealing with cases. Figure 1 provides a country-level overview of the case ending procedures available based on certain categories developed within the study. The term simple drop is used to describe an evidence based ending of a case; a case is not proceeded with because technical, legal or evidential circumstances lead the responsible institution to decide that a prosecution is not viable in accordance with the criteria set out in the respective country. This is a decision made in accordance with the fundamental mandate of any prosecution service. Its very raison d’être is to ensure that court time is devoted only to evidentially sound cases. It is a reflection of the principle of legality fundamental to most civilian legal systems. corrections made. 17  Via interviews as well as intensive workshop discussions with representative practitioners from all study countries.

Cursory judicial involvement

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France1 Poland

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Public interest England & Wales drop France Germany The Netherlands Sweden

England & Wales France Germany The Netherlands Poland Sweden

Germany

England & Wales The Netherlands

England & Wales France Germany The Netherlands Poland Sweden

Simple drop

France Germany The Netherlands Poland Sweden

England & Wales France Germany The Netherlands Sweden

Leads to an Internal Record

Judicial involvement

Option available to Prosecutor in:

Can be made by police

Consequence

Institutional Responsibility

Figure 1. Case-Ending Options Available and their Conditions

France Germany The Netherlands Sweden

England & Wales France Germany The Netherlands Sweden

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England & Wales

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England & Wales France Germany The Netherlands Poland Sweden

England & Wales France Germany The Netherlands Poland Sweden

England & Wales France Germany The Netherlands Poland Sweden

Full trial

2 

For a minority of the procedural options available. Where it is an entirely independent prosecution service measure.

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Where no entry is made, the option is not applicable.1 2

France Poland

France Poland

France Poland

Negotited case settlement

England & Wales Germany The Netherlands

England & Wales

Germany The Netherlands

England & Wales Germany The Netherlands

Accelerated proceedings

France Germany Poland Sweden

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Beyond that, the realm of discretion begins. A public interest drop is a caseending without further consequence made upon grounds going beyond mere evidential and technical sufficiency. It involves a judgement that a case is not worthy of court time. Such a judgement may be made by an individual prosecutor or policeman acting upon his or her personal conviction where such decisions are left to individual discretion. Often this is regarded as unacceptable so the head of the service as a whole (ministry of justice, national police board) or of the regional unit (prosecutor generals) issues binding guidelines imposing a framework for such discretionary decisions. Where such a discretionary decision is taken, a decision is made to proceed no further in spite of a case being technically fit to be the subject of a court decision. This drop and the presumption of guilt associated with it is noted in an internal record (meaning that members of the agency making the decision certainly have access to it, often other agencies involved in investigation – the police and the prosecution service – also but unlike a conviction, this information remains exclusively within the criminal justice system). The suspect will face no tangible consequence beyond being informed that a state institution regards him and her as guilty of an offence and has noted this fact for future reference (something a suspect can usually do nothing about, even if s/he protests innocence). A conditional disposal is a further discretionary decision which halts criminal proceedings against a suspect. However, a condition is attached to this halting which usually results in some form of action being demanded from or a consequence imposed upon the suspected offender.18 Only when compliance with this condition is achieved is it regarded as acceptable that further criminal proceedings be avoided. The suspect is required to fulfil a condition (e.g. pay a fine, community service, mediation, addiction treatment, etc.) in exchange for proceedings being dropped and the state’s right to punish being spent. Thus s/ he has the option of non-compliance. Such case endings take the form of conditional cautions or the Dutch transactie system. The disposal and presumption of guilt associated with it, will be recorded in an internal register (accessible at least to the agency which made the decision, if not also to other CJS agencies in future investigations) but it is not considered a finding of guilt. As such it is not a conviction, with no criminal record resulting. This differentiation is essential in legal orders which allow only a judge to make findings of guilt which lead to the imposition of punishment. In Germany and Poland these types of case-ending-decisions are usually subject to court approval.

18  Thus the British caution is included here because it requires a suspect to agree to a police finding of guilt and a record of this.



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The further types of case-ending decisions identified involve court judgements leading to a conviction (i.e. a finding of guilt leading to a criminal record). An increasing number of paths to achieving conviction exist across Europe. Penal Order Proceedings involve a prosecutor making a written application to court in which a specific punishment (a fine or short-term prison sentence) is requested for an offence described in brief. A judge decides to issue a penal order in camera or rejects it entirely; ordering a full trial. If the judge approves the prosecution request, the order is served upon the convict who has a limited period of time (8 days19 – 1 month20) to object to it, thereby also forcing a full trial. Because of the rarity of judges rejecting such applications such convictions can effectively be regarded as a prosecutorial decision. In choosing this path, a prosecutor assesses a suspect as guilty of an offence, determines the punishment suitable and, usually, sees his or her judgement enforced by a court. Accelerated Proceedings refer to cases that basically run as a full-trial but incorporate certain simplified procedures at the pre-trial or adjudication stages (e.g. bulk proceedings21 in England and Wales; or certain stages are left out and no written charge required as e.g. in the beschleunigte Verfahren in Germany, etc.). These are available for use in simple cases and may lead to more severe punishments than are available via penal order proceedings. The Negotiated Case-Ending Procedures category encompasses recently emerging procedural forms. They involve negotiations between prosecution and defence as to the charge made and the sanction requested which end in an application being made to the court and a brief hearing. Such proceedings are variations upon plea and/or sentence bargaining and can often be used for all but the most serious offences (e.g. in Poland they can be used to impose up to 10 years of imprisonment). Full trial Proceedings are those traditionally foreseen by the legal system and usually involve a public trial during which evidence is presented more fully to the judge. They provide a multitude of procedural mechanisms to ensure the defendant is fully and impartially heard, requiring high standards of evidence to support the prosecution case. A decision is made by the court; conviction and criminal record ensues for those found guilty. 3.2. Prosecutorial Decision-Making 1998 and 2002 Although statistical data was collected from 1993 to 2002 the systems studied changed so greatly within the study period that a longitudinal statistical comparison As is the case in Poland. As is the case in France (30 days) and Germany. 21  Which refers to procedures during which a large number of suspects are convicted for the same type of offence in one sitting. 19  20 

endings are included where systems allow these and in as far as they are recorded). The various case-ending options available in the respective countries are shown as a proportion of all the case-ending decisions made at the prosecutorial level in 604 country to allow for international marianne wade that comparison. Figure 2. Prosecution Case-Ending Decisions 2002 F igure 2.: Pros ecution C as e-E nding Decis ions 2002 Figure 2. Prosecution Case-Ending Decisions 2002 100%

90%

80%

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Cases brought before court Special Forms Penal Order

50%

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40%

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30%

20%

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0% England & Wales

22)

France

Germany

The Netherlands

Poland

Sweden

Except England and Wales where the data stems from 2004.

across the entire study period was not possible. Often the legal structure changed dramatically and statistics comparable to 2002 only became available from 1998 onwards. Consequently that is the comparison presented here which shows and allows comparison of the rates of use of the prosecutorial case-ending options described above (see Appendix A for absolute figures). Figure 2 PPS Case-ending decisions 2002 shows the use of the various case ending options described above by the prosecution services studied in 200222 tracking the procedural paths of cases entering criminal justice recording systems (police case endings are included where systems allow these and in as far as they are recorded). The various case-ending options available in the respective countries are shown as a proportion of all the case-ending decisions made at the prosecutorial level in that country to allow for international comparison. Figure 3 displays data from 1998 in order to provide a comparison and to allow some conclusions to be drawn about changes to the prosecutorial role in the study countries during the study period. Statistical comparison at this level is a delicate matter. The importance of differences in input into the respective statistics is central and explained in relation 22 

Except England and Wales where the data stems from 2004.



Wade European Journal of Crime, the/januses of justice Criminal Law and Criminal Justice 16 (2008) 433–455

442

605

Figure ProsecutionCase-ending Case-Ending Decisions Figure 3.3. Prosecution Decisions 19981998 F igure 3.: Pros ecution C as e-E nding Decis ions 1998 100%

90%

80%

70%

60%

Cases brought before court Penal Order

50%

Conditional Disposal Public Interest Drop Simple Drop

40%

30%

20%

10%

0% England & Wales

France

Germany

The Netherlands

Poland

Sweden

to each country butdata it must be1998 noted is subject to great variation the Figure 3 displays from in that orderthis to provide a comparison and toinallow countries studied; the various police profiles and cultures deeply affect in how far some conclusions to be drawn about changes to the prosecutorial role in the study cases are passed on to the pps or dealt with by the police alone, possibly without countries during the study period. 23 being recorded statistically. Furthermore, questions ofThe offence definition are Statistical comparison at this level is a delicate matter. importance of difdecisive because one country’s criminal offence is another’s administrative breach ferences in input into the respective statistics is central and explained in relation and thuscountry not included in CJSbestatistics. International comparison can thusinonly to each but it must noted that this is subject to great variation the be by proportion of all cases dealt with as the subject matter of criminal justice countries studied; the various police profiles and cultures deeply affect in how far 24 systems varies strongly across Europe. cases are passed on to the pps or dealt with by the police alone, possibly without England and Wales has by23far the highest proportion brought to court. being recorded statistically. Furthermore, questions of of cases offence definition are This can presumably be explained by the relatively limited mandate given to decisive because one25country’s criminal offence is another’s administrative breach and the use of more efficient trial forms (bulk and guilty the pps to end cases and thus not included in CJS statistics. International comparison can thus only be by proportion of all cases dealt with as the subject matter of criminal justice 24 23  systems varies strongly across Europe. For possible cultural influence on prosecutor decision-making see J. Jackson, “The Effect of

Legal Culture and Proof in Decisions to Prosecute”, 3 Law, Probability and Risk (2004) pp. 109–131. 24  For detailed discussion of these problems and how they impact upon the study findings see Wade, 2006 and 2008. 25  This is the result of very conscious policy setting and in spite of the traditional emphasis 23) For possible cultural influence on prosecutor decision-making see J. Jackson, “The Effect of Legal given to the fact that there is no obligation to prosecute on the part of English and Welsh criminal Cultureagencies and Proof in Rogers Decisions to Prosecute”, Law,and Probability Risk (2004) 109-131. justice (e.g. (2006), loc. cit., p.3 777) is clearlyand reflected by thepp. CPS’ tendency to (Rogers (2006), loc. cit., p. 778, and Ashworth andimpact Fionda (1994) cit.findings pp. 899see andWade, 900; 24) prosecute For detailed discussion of these problems how they upon theloc. study R. Daw, ‘The New Code for Crown Prosecutors: (2) A Response‘, Criminal Law Review (1994) pp. 2006 and 2008.

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plea proceedings) there. Of the cases not reaching court, about half are simple drops and the other half conditional disposals (some form of cautioning by the police done in agreement with the prosecution service26). These are used to deal with petty thefts, cannabis possession and less serious violent offences by first time offenders.27 The proportion of public interest drops made by the pps is very small providing clear indication that prosecutors there do not make the kind of public interests judgements expected in other jurisdictions. This may change with the prosecution service having gained control over charging in 2005 which is likely to lead to increased prosecution influence on the use of conditional cautioning (as prosecutors can refuse to charge suggesting cautioning or a drop instead), possibly accompanied by more discretionary drops. The 2002 statistics however clearly reflect British policy that prosecutorial discretion should be used sparingly.28 It will be interesting to see whether the resulting prosecution influence upon cautioning does anything to change case-ending patterns. It is highly plausible that the British pps role is quite different than that of its Continental counterparts. The procedures in place in England and Wales lend themselves to pps influence upon court decisions by ensuring guilty pleas as well as suggesting the use of conditional dismissals, mediation and compensation orders rather than independent case-ending decisions.29 In this way prosecutors ease court proceedings and significantly mark the criminal justice process. This role can unfortunately not be explored fully by a study of this nature but will form a future study focus. Comparable statistics are not available for a previous year. The statistics for France tell an entirely different story. French police officers are in an entirely different position; strongly bound to the prosecution service and above all required to pass all cases on to the pps, even those in which no suspect has been found (these cases are however excluded from this statistical comparison). Almost 60% of cases in which a suspect is identified are ended without any court involvement. There is a significant proportion of simple drops displaying the pps’s role in evaluating the merits of a case on technical grounds. Over 30% 904–909 at 908), though it means that unlike their Continental equivalents, public interest drop powers in the hands of British prosecutors are not associated with diversion (see e.g. Ashworth and Fionda (1994), op. cit., p. 898). 26  With even simple cautioning being categorised as having a consequence for the suspected offender here because of the resulting entry made in a national database, which is regarded as an establishment of guilt. 27  M. Wade, ‘The Power to Decide – Prosecutorial Control, Diversion and Punishment in European Criminal Justice Systems Today’, in J.-M. Jehle and M. Wade (eds.), Coping with Overloaded Criminal Justice Systems – The Rise of Prosecutorial Power (New York 2006) pp. 27–126 at 67. 28  Ashworth and Fionda (1994) loc. cit. 29  Initiating procedures prosecutors on the Continent refer to independently but which require court orders in England and Wales.



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of cases are, however, ended by a public interest drop or a conditional disposal imposed independently by the pps. This is clear evidence of a pps (in this case led by Ministry of Justice guidelines) making value-judgements as to what the system should be used for. It is prosecutors who decide which of those suspected offenders they regard as guilty should face no further consequences and which can be allowed to avoid a formal trial provided they fulfil a condition. If one further considers the influence prosecutors exercise over penal order proceedings, the statistics bear witness to the pps exclusively determining the state response to approximately the same proportion of offenders as the courts do. In other words; if the pps evaluates a suspected offender as guilty of an offence, there is a 50% chance that it will be a prosecutor and not a judge who decides what “punishment” (usually independent of a conviction) that suspected offender will receive. Using such procedures prosecutors deal with less serious offences than those passed on for courts to adjudicate. Conditional disposals are available in a multitude of forms each with different use patterns relating to petty theft, cannabis possession, traffic offences and less serious violent offences by first time offenders.30 Penal order proceedings are used mostly to deal with traffic offences and recidivists to impose a fine.31 Recent changes to the law introducing the comparution sur reconnaissance de culpabilité, the altered composition pénale 32 and new procedures to deal with those suspected of organised crime, means that the balance of the simple division depicted here may be changing, with the pps expected to play a more decisive role also in relation to more serious offences in the future. In comparison with 1998, the French statistics reveal stability in the number of cases being taken to court for full trial or penal order. Significant changes can be seen in relation to prosecutorial case-ending decisions. The proportion of simple drops is slightly lower in 2002, as is the proportion of public interest drops whilst the rate of conditional disposals is higher. This indicates a stable division of roles between the court and pps but a shift within pps case-ending behaviour with fewer drops and of a greater proportion of disposals taking place. In other words the pps is imposing conditions or “quasi-sanctions” more often. This development is in harmony with changes made to the French procedure code providing more disposal options and with the political desire expressed alongside and by their introduction: that drops be used less often. The situation in Germany is striking because of the slim proportion (just over 20%) of cases dealt with by the courts in full court proceedings. One must 30  31  32 

Wade 2006, loc. cit., p. 71. Wade 2006, loc. cit., p. 77. Both of which facilitate deals between prosecution and defence for more serious offences.

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note, of course, that the proportion of simple drops is the highest within the study at well over 30%. This is likely to be a result of the stringently implemented hand-over requirements placed upon the police.33 The proportion of cases ended by discretionary decisions inherent to the pps, i.e. by a public interest drop or a conditional disposal, is smaller than in France, perhaps indicating that the German pps does not have quite the same standing as a representative of the public interest. In all but the most minor of cases such decisions are subject to (factually very cursory) court approval. The degree of co-operation between the courts and the pps is distinctive; underlined further by the extensive use of penal order proceedings. These were used just as often as discretionary prosecution options and were more common than full court proceedings in 2002. Penal orders are issued almost exclusively to impose a fine in cases of traffic, less serious violent and minor property offences even when these are committed by recidivists. Conditional disposals are used in similar cases but for first-time offenders whilst public interest drops are intended for petty theft, cannabis possession and some minor property offences committed by first-time offenders.34 Considering the formal requirement placed upon prosecutors to seek judicial approval, the statistics indicate a pps working in parallel with the courts to deal with those it considers guilty. At face value this reflects less prosecutorial discretion and stronger court involvement than in France as intended by the code of criminal procedure. The factual situation is, however, that court approval of public interest drops and conditional disposals is a matter of course and the slightly stronger court involvement in penal order proceedings does not justify these being qualified as anything other than prosecutorial decisions; contradicted far more frequently by the suspect than by judicial control. Thus these statistics in fact bear witness to a prosecution service deservedly referred to as “the judge before the judge”35 and are in line with the trend identified by Fionda.36 In comparison to the 1998 statistics, the German statistics show a higher rate of cases being dealt with by full court procedure in 2002 although the very low 1998 rate (under 10%) perhaps makes this unsurprising. Whilst the proportion of cases being dealt with by penal order proceedings did not change greatly, this means that a significantly larger proportion of cases resulted in true court decisions than in 1998. The rate of conditional disposals and public interest drops also increased between 1998 and 2002 with the number of simple drops decreasing significantly. The proportion of suspects regarded as guilty and facing 33  Although legally the French situation is the same, there is evidence that police prosecution communication during “traitment temps reale” is leading to a certain degree of informal case disposal by the police meaning that some cases are in fact not passed on. 34  Wade 2006, loc. cit., p. 67, 71 and 77. 35  E. Kausch, Der Staatsanwalt, ein Richter vor dem Richter? (Berlin 1980). 36  J. Fionda, Public Prosecutors and Discretion (Oxford 1995) at p. 170.



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a pps or court reaction increased between 1998 and 2002. This may reflect the German system having become more efficient in this period. The Netherlands’ statistics show a similar picture to Germany for 2002 with circa 30% of cases being disposed of by conditional disposal, i.e. a prosecutor imposing a quasi-punishment entirely independently. These involve the pps independently imposing a condition upon the suspect who wishes to avoid trial (usually a fine of up to € 450 000 in normal or more in certain cases, but also confiscation and community service) usually via the transactie system.37 Such case-endings are used in accordance with a strict guideline and points system to deal with offences such as petty theft, cannabis possession, traffic, less serious violent and minor property offences.38 The 60% of cases dealt with in court may provide an unexpected picture of the pps reputed to be the most powerful in Europe.39 In this context it is decisive to know that Dutch courts deal with cases largely based upon the written file submitted by the prosecutor and thus with even complex cases within one or two hours.40 The key to correct understanding lies with the balance of the pps/court relationship and the evidence suggests that Dutch prosecutors’ power to exercise far-reaching influence upon court decisions is not restricted to special procedures but marks the “normal” criminal justice process due to prosecutorial influence upon the evidence forming the basis of court decisions. The use of public interest drops is comparatively very limited as is the proportion of simple drops. This reflects a government policy decision to reduce the number of cases meeting no reaction41 indicating strong government control over the policy imposed by the prosecution service and the effectiveness of the guidelines system in place there. A comparison with 1998 reveals a significant drop in the proportion of simple as well as public interest drops between 1998 37  Conditional disposals at this level raise a question as to where the line to a sanction lies; the German system has also witnessed high “fines” attached to disposals such as the 300 000 DM paid by Dr. Helmut Kohl or the 1.5 Million DM paid by Steffi Graf in the context of the tax offices ending cases against her or more recently the Mannesman and Hartz trial deals all of which led to intense media and public discussion – see e.g. H. Prantl, “Zahlt ein Täter genug Geld …”, Süddeutsche Zeitung 25.11.06 and M. Quoirin, “Noch einmal billig davongekommen”, Kölner Stadtanzeiger 25.11.06. 38  Wade 2006, loc. cit., p. 71. 39  See e.g. G. Dingwall and C. Harding, Diversion in the Criminal Process (London 1994), pp. 134–135; Fionda 1995, op. cit., pp. 97 & 130. 40  Highly complex cases sometimes taking one or at a stretch 2 days – a speed which has led highly influential British figures to demand that we learn efficiency from the Dutch system – see I. Blair (2006), Speech at the Urban Age Summit available online under – a demand which it seems impossible to fulfil given the entirely different parameters of criminal justice institutions, even before discussions of desirability begin. 41  P. Tak, The Dutch Criminal Justice System (The Hague 2003), p. 51.

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and 2002, the rate of conditional disposals42 only increasing slightly with the proportion of cases going to court doing so quite significantly. The study period was thus marked by successful Dutch pps reform. The situation in Poland is one of particular interest given the changes which have occurred there since the fall of the Iron Curtain although the number of fundament-shifting alterations to the criminal procedure code (three within the project’s time span) mean that an annual statistical overview has limited meaning. The statistics of 2002 bear witness to over 50% of cases being dealt with by the courts directly. Conditional disposals and penal orders are, unlike in other study countries, categorised as true court decisions meaning that court influence is decisive for nearly 70% of cases. The 1996 reform of the criminal procedure code charged the courts not only with overseeing full and alternative procedural forms but further stripped the traditionally powerful pps of its power to independently dispose of cases conditionally. As figure 2 shows public interest drops do not exist. All case-ending decisions beyond evidential and technical sufficiency are described as under court control. A fundamental mistrust of the pps seen as an instrument of political control under the Communist regime, led to this disempowerment. The Polish pps is shown to be using the alternative procedural means it has in a comparatively low proportion of cases and this is reported to be because court involvement is high, i.e. these measures may not be any more efficient than a full court trial. The 2002 statistics are indicative of a pps reduced to the traditional role of deciding upon evidential sufficiency with the exception of negotiated case settlements: Voluntary submission to punishment and the prosecutor’s application for judgement without trial are proceedings in which a deal is reached by the pps and defence and then approved by the court. All in all, however, the Polish system seems to be bucking the European trend towards prosecutorial power found in the other countries studied in 2002. Viewed against the backdrop of the trend in much of Europe (exemplified by France, Germany and the Netherlands in particular), with the knowledge that Poland traditionally has a strong pps (erring towards the German model before the communist one was imposed) this picture may not sit easily. Scepticism at the sustainability of this situation only increases when one considers that Poland faces over-loading problems similar to, if not greater than, those in the other countries studied.43 Only further study will determine what the pps role in Poland now is and will be. Readers should note that radical reform has continued.44 Includes police case-ending decisions made using “borrowed” pps powers. See e.g. S. Waltoś, “Konsensualverfahren im Polnischen Strafrecht”, in G. Wolf, Kriminalität im Grenzgebiet 7 (Berlin 2003). 44  Especially with the numerous criminal justice reforms made by the Law and Justice Party which resigned only on 5 November 2007 after clear electoral defeat. 42  43 



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Comparison with 1998 clearly demonstrate the alterations made to the nature of the Polish pps between 1998 and 2002. The use of public interest drops vanishes. The rate of cases going to court increases and taken together with the other types of case-ending decisions (subject to court approval) is almost equivalent to the proportion of cases ended by public interest drops in 1998. The rate of simple drops increases. This change reflects the desired increased importance of the courts; a small proportion of drops previously made on public interest grounds perhaps made as simple drops in 2002. In Sweden the statistics show the courts as dealing with almost 50% of cases and the pps stringently extracting evidentially insufficient and technically flawed cases. Just under 20% of cases are, however, dealt with by public interest drops and by the Swedish version of penal order proceedings (which lead to a conviction imposed by the prosecutor alone) indicating that the prosecution service also has a significant role diverting a certain number of cases from court. Penal orders can be used only to impose fines on recidivists as well as first-time offenders and to deal with offences such as petty theft, cannabis possession, traffic offences, less serious violent and property offences. Public interest drops are used for the same offence types excluding violent ones but only when committed by firsttime offenders.45 The proportion of drops is also significantly different to other countries displaying lower rates of prosecution service drops because these are not recorded in Sweden (see infra on input differences). Comparable statistics are not available for a previous year. Before interpretative discussion of the study findings can ensue, a few points relating to the central statistical comparison must be made. Factors influencing statistical input into the systems are of particular importance. As mentioned above German and French police officers are required to pass on all cases to the pps, even those in which no offender is found. Whilst the study findings present the huge number of such French and German cases calculated out, one must be aware that we are unable to calculate out the effects such cultural differences may have. Where it is made clear to police officers that their duty is exclusively to pass cases on to the prosecution service, it is rational to assume them to be less prone to turning a blind eye – the most difficult form of police discretion to control. If failing to pass a case in which no suspect is found, no matter how trivial, on to the prosecution service is a form of insubordination, a police officer must surely approach letting a suspect go with an entirely different feeling than an officer who knows he himself is likely to be issuing the suspect in front of him with a warning.46 Wade (2006) loc. cit., pp. 71 and 77. Naturally the balance of power between prosecutors and the police in the investigative stage has strong repercussions for the criminal justice system as a whole. A preliminary publication of the study results on this issue is available (Wade 2006 op. cit.) and deeper analysis by Beatrix Elsner will be available in future project publications. 45  46 

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This cultural difference might also explain why a look at the absolute numbers when considered in combination with the relevant population statistics reveals that the figures for Britain are relatively low in comparison to other large European countries. It is highly likely that the number of simple drops made is underestimated because of the traditionally strong English and Welsh police making decisions to drop cases without them ever being recorded statistically. Dutch police, who formally do not have powers to make simple drops are, however, reported to be making them. Their powers to make discretionary drops have created a culture in which the courts accept this function. This kind of police culture has a fundamental impact upon the statistics presented. Swedish police also have powers not to record a case. British, Dutch and Swedish statistics are thus likely to underestimate the rate of cases being dropped. In how far this relativises the higher rates of cases being taken to court requires further study.

4. Discussion and Conclusion The study findings indicate very strong prosecution services in France, Germany, and the Netherlands. Statistically the Swedish prosecution service does not appear to be as influential as some of its counterparts, but is the decisive agency in a significant proportion of cases. The Polish pps is significantly less powerful leaving the courts to end far more cases, whilst the British pps appears to play an entirely different role within the criminal justice system there. 4.1. Patterns in Decision-Making across Europe As the study findings above show, there are some common patterns to be found in how cases are ended, i.e. how the respective CJSs “do” justice, across Europe. These will be briefly summarised and analysed here as to how they might impact upon the meaning of justice in Europe. The type of judicial process traditionally associated with justice being done and foreseen by legislatures via the codes and rules of criminal procedure – the full trial – remains. It is used for one layer of cases which prosecutors immediately select as requiring full judicial attention (almost always) in a public hearing. In all of the countries studied except the Netherlands and Poland this was a minority of cases. In this category the prosecutor deems that justice can be done by no other means than the full process intended to achieve it by the legislature (though this does vary greatly in nature across the study countries, a normal Dutch trial for example is unlikely to be palatable to judges in other jurisdictions). Only more serious offences or those committed by recidivists lead to such proceedings. This category of cases is flanked by one in which the prosecutor requires full judicial authority for the case-ending s/he regards as appropriate but in which s/



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he chooses to negotiate with the defendant in one way or another. These may be included in the normal court statistics, as is the case with guilty pleas in England and Wales47 but usually they are visible as alternative forms. The prosecutor elects the form of proceedings, agreeing on a charge and/or sentence with the defence. Both parties then ask the judge to approve this. Interestingly, the last years have seen explosive development48 of the use of such proceedings just introduced in Poland at the time the statistics above reflect. It would seem that those proceedings, which seem most conducive to prosecutorial power, are in fact being used increasingly meaning that prosecutors are by-passing the reformed conditional disposal or penal order proceedings intended to ensure case-ending power remained with the courts in Poland.49 Whether this means that the Polish pps is in fact following the European trend towards increased pps power remains to be examined. Due to this eclipsing of the first category of judicial decisions in Poland by such proceedings since 2002, the slim majority of cases taken to normal proceedings there in 2002 is not regarded as contradicting a central study conclusion: full and true court scrutiny is used to do justice only in a minority of cases. A large proportion of court decisions are achieved under strong prosecutor influence. S/he selects cases, also often among the most serious and complex s/he deals with, in which s/he anticipates that justice can be done via a conviction but with less judicial scrutiny being accepted by all sides; negotiating a case ending. Another category of cases allows a prosecutor to achieve a conviction but less scope to negotiate; the well-established Continental penal order proceedings. The slim proportion of these rejected by courts over the years make it clear that these are prosecution selected penalties. Such cases are dealt with in camera and used for defendants who receive a fine or, very exceptionally, a short prison sentence. They are used for straight-forward but less serious cases. Beyond that, prosecutors across Europe have powers to deal with suspects they consider guilty but who, it seems, they do not believe to require a conviction or any kind of contact with a court in order to receive an adequate CJS reaction. Thus prosecutorial quasi-sanctions were used for 30% of cases in France, 40% in Germany, over 30% in the Netherlands and almost 20% of cases in Sweden 47  Which constitute such a large proportion of cases going to court that they and not the full trial constitute the main case-ending option taken there, see A. Sanders and R. Young, Criminal Justice (Oxford 2007) p. 383 onwards, J. Peters, “Die gesetzliche Normierung von ‘Absprachen’ im Strafprozess Bewertung deutscher Gesetzgebungstendenzen unter Berücksichtigung europäischer Entwicklungen am Beispiel von England & Wales, Frankreich und Polen”, Unpublished doctoral thesis (2009). 48  T. Bulenda, B. Gruszczynska, A. Kremplewski, P. Sobota, “The Prosecution Service Function within the Polish Criminal Justice System”, in J.-M. Jehle and M. Wade (eds.), Coping with Overloaded Criminal Justice Systems – The Rise of Prosecutorial Power (New York 2006) pp. 257–284 at 246. 49  Being used for 40% of cases in 2006 see M. Wade, “When the Line is Crossed”, 2-3 European Journal on Criminal Policy and Research (2008), pp. 101–122.

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in 2002. In England and Wales50 and Poland the number was comparatively low. In England and Wales presumably because such solutions are achieved via conditional court dismissals and orders whilst in Poland court scrutiny remains intense in such proceedings, resulting in less likelihood of the prosecution service using them. In such cases, prosecutors may order suspects to pay a fine (or more rarely to participate in mediation, seek treatment for addiction, do community service etc.) in exchange for their cases not being taken to court and no criminal conviction potentially being imposed. Suspects are legally regarded as innocent despite their (quasi-)punishment. A justice of kinds is achieved (a criminal act – presumably correctly associated with the suspect charged – does not remain entirely “unpunished”) in exchange for a certain acceptance of guilt, in a far more resource efficient manner than the full criminal process. Legal scrutiny of the case is limited to a prosecutor forming an opinion of the case, usually on the basis of police files. This kind of solution is used almost exclusively for first time offenders having committed less serious offences. The difference between a “true” sanction (and indeed a “true” criminal record) and what is achieved here may be regarded as questionable; legally these consequences are, however, explicitly not categorised as such. The final category of prosecutorial discretion relates to the cases in which a prosecutor elects that no further action is necessary despite an opinion that the suspect is guilty. The decision to drop a case on what the study refers to as broad public interest grounds is presumably that the contact endured with the CJS thus far will be warning enough to the first time offender and that justice requires no further steps. These cases are of a minor nature. In performing their central task of sifting out evidentially insufficient cases, prosecutors also close a number in which, given investment of further CJS resources, evidential insufficiency could be countered by further investigation. Like the police before them, prosecutors apparently consider the least serious category of offences and offenders (perhaps in combination with the prospects of success) as unworthy of this investment. The more serious a case is, the greater the efforts the prosecutor will order to counter such insufficiency as reflected by clear-up rates.51 The same applies vica versa. The level of legal scrutiny applied to a case is only the full level traditionally associated with achieving justice52 in the first category of cases analysed (full trial). Moving down the scale of options one increasingly sees decisions made 50  Reflecting very clearly the legislative intent that public interest drops there were intended for very different purposes than cautions see Daw (1994), loc. cit., p. 908). 51  UNECE (2003) Trends in Europe and North America – Statistical Yearbook of the Economic Commission for Europe 2003. Available at: . 52  And it would seem expected by the public as shown, e.g. by the public reaction to the dropping of the high profile Mannesman/D2 trials in Germany.



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by individual prosecutors in isolation, behind closed doors and based upon a decreasingly intense scrutiny of evidence; at least by anyone other than the prosecutor taking the decision as to which procedural form is most suitable. The study findings which indicate a similar trend in the use of the various proceedings available, may well indicate that the type of case and offender have become key in deciding how the case will end or how “justice be done.” Prosecutors can be seen to be assigning importance to cases and suspects and deciding which CJS resources to devote to them. Where prosecutors are not free to use the full range of options described here, as in England and Wales and Poland, CJS reliance upon agreement with the defence (guilty pleas, deals) becomes dominant. 4.2. The Products of Prosecutorial Discretion It thus appears that only the most persistent and dangerous offenders, committing more serious offences warrant prolonged court scrutiny. Faced with rising, increasingly complex caseloads, prosecutors across Europe seem to have adopted responsibility for managing this valuable resource; beyond that, they decide more or less independently, most recently sometimes in negotiation with the defence, what is required to achieve justice in the cases before them. Especially in relation to decisions imposing no or less intrusive consequences upon a suspect s/he regards as guilty, the prosecutor will decide (possibly more cursorily) what is appropriate. S/He will do so in isolation behind closed doors with no need e.g. to enter into a dialogue on the suspect’s motive. The procedural alternatives to full trial all have in common that they allow cases to be ended in less time and resource intensive manners. That prosecutors’ desire for court scrutiny increases in line with case seriousness (displayed by their consistent bringing of such cases to full trial) indicates that prosecution services across Europe are using alternatives to ensure this resource is available where it is needed most: in serious cases. The image invoked of a prosecutor professionally managing criminal justice resources and imposing more efficient solutions based upon categorisation of offenders, rather than their and their cases’ finely evaluated individual characteristics, is reminiscent of some of the notions associated with actuarial justice.53 The logic of the efficiency gains the prosecutor requires from such cases for the CJS and thus the functioning of justice as a whole, is that prosecutors will make a decision based upon the likelihood s/he sees that a simple warning/low-impact, non-public sanction will have the right effect upon and be accepted by the type of offender s/he regards the case suspect as. Presumably this will be related to the needs of justice in that case and the deterrence effect upon the offender. A 53  M. Feeley and J. Simon, “Actuarial Justice: the New Emerging Criminal Law”, in D. Nelken (ed.), The Futures of Criminology (London 1994).

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less serious offender requires fewer resources, a less severe reaction and lesser punishment. This may be based upon the prosecutor’s personal opinion but is usually defined across Europe by guidelines issued to prosecutors defining the categories of offence and offender for which the options available may be applied. Prosecutors are thus exercising executive powers, categorising cases and suspects; “punishing” without reference to the judiciary. Influenced by guidelines, prosecutors can effectively be seen to be grouping suspects into sub-categories to which they are expected to dedicate a certain amount of CJS resources. Prosecutors are thus allocating their options to achieve justice accordingly. Prosecutors are managing the CJS, clearly deciding who deserves the “harms of punishment” and the “harms of process” (Rogers supra) to which extent. In doing the later, prosecutors also determine the opportunity a suspect will have to fight the allegation made. In the majority of cases suspects are found to be worthy of state “judgement” and even quasi-punishment upon far less (well-scrutinised) evidence than has traditionally been associated with the justice criminal proceedings are expected to achieve. In the majority of cases in the countries studied, bar Poland (and questionably England and Wales), it is the prosecutors legal evaluation and assessment of appropriate punishment which is decisive. It is the prosecutor who decides which and how many resources to devote to establishing or possibly proving guilt and to the imposition of punishment. In all study countries prosecutor power is growing. In the majority of cases across Europe justice is increasingly being done by a prosecutor. To a reader familiar with accounts of the American justice system,54 this finding will not have a ring of novelty to it. When one bears in mind, however, that precisely those countries displayed by this study to have the lowest rate of court participation in the CJS as a whole are those whose legal doctrine professes the closest ties to the principle of legality (associated with mandatory prosecution) and a traditional abhorrence of justice by plea bargaining, the importance of the study’s findings becomes clear. Practice, it would seem, is a far throw from being able to achieve the justice foreseen by the law in the books. Though this statement is familiar to the point of banality, its consequence is dramatic in this context. Criminal procedures foreseen as the norm by legal orders are more often the exception in practice; the image and legal definition of justice across Europe must be reviewed given these findings.

54 

Seminal L. Carter, The Limits of Order (Lexington, 1974).



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Appendix A. Statistics shown in Figure 2 Prosecution Case-Ending Decisions 2002 England & Wales

France

The Germany Netherlands

Poland

Sweden

Simple Drop

148000

467099

1250445

17280

287000

107003

Public Interest Drop

13000

275330

465215

10803

n.a.

22283

Conditional Disposal

152000

241732

245407

75576

38114

n.a.

Penal Order

n.a.

81963

586228

n.a.

17795

24626

Special Forms

n.a.

n.a.

n.a.

n.a.

45622

n.a.

Cases brought before court

1491000

534539

564833

145738

391487

116204

Total

1804000

1600663

3112128

249397

780018

270116

Statistics shown in Figure 3 Prosecution Case-Ending Decisions 1998 England & Wales

France

The Germany Netherlands

Poland

Simple Drop

403009

2071349

20815

127219

Public Interest Drop

313783

474059

13768

113003

Conditional Disposal

131111

236357

71138

Penal Order

n.a.

61415

659368

n.a.

Special Forms

n.a.

n.a.

n.a.

n.a.

n.a

545108

360397

135428

220914

0

1454426

3801530

241149

461136

Cases brought before court Total

Sweden

n.a. n.a.

0

5. The Mechanisms for Cooperation in Criminal Matters

The European Arrest Warrant – the Early Years: Implementing and Using the Warrant Mark Mackarel Lecturer, School of Law, University of Dundee, United Kingdom

1. Introduction In June 2002, the Council of Ministers concluded the Framework Decision for the creation of the European Arrest Warrant (EAW).1 The EAW represents not only a wholesale change to the nature of extradition standards and procedure in the European Union, but was also the first manifestation of the policy to make mutual recognition the basis of measures to develop cooperation throughout the European Union (EU) in criminal law and criminal procedure.2 The EAW came into force on 1 January 2004, on a limited basis and all twenty-five of the Union’s Member States had taken steps to implement the EAW into domestic law by April of 2005.3 At the time of writing, the EAW has had over two years of practical operation. The aim of this article is to review the practical operation of the EAW and to consider the experience of Member States in entrenching the EAW into their domestic law. Can the introduction of the EAW be viewed as a success both as a measure for enhancing cooperation in criminal matters across the EU and for the broader policy of mutual recognition that underpins it?

2. The Background to EU Cooperation in Criminal Matters Since 1992, the EU has slowly constructed a framework of measures for improved cooperation between Member States in the field of criminal investigations and prosecutions. Whilst progress was made, individual member states proved reluctant to relax sovereignty or to cede entrenched principles of domestic 1  Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States. OJ L 190, 18.7.2002, p. 1. 2  Tampere European Council Presidency Conclusions, 15/16 October 1999. 3  The EAW was transposed into Italian law on 22 April 2005.

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criminal law and procedure, leaving barriers to improved cooperation such as the political offence exception and the non-extradition of nationals.4 Furthermore, the record of Member States in ratifying the Conventions has been very poor. For example, neither of the 1995 and 1996 EU extradition treaties came into force.5 The poor record of implementing these Conventions gave rise to the unhappy situation, that whilst there was a requirement on acceding states that became members of the Union in 2004 to implement these Conventions as a condition of membership, placing further pressure on their resources and legislative time, founder members of the EU themselves had still not implemented the Conventions. This despite the EAW having practically already superseded the 1995 and 1996 Conventions. Likewise, The EU Convention on Mutual Legal Assistance in Criminal Matters that was concluded in 2000 and contained some fundamental additions to the extent of mutual assistance6 did not enter into force until August 2005, only shortly before the European Evidence Warrant is expected to update some of these measures.7 A combination of the slow progress in implementing agreed measures, the continued growth the nature and extent of cross border crime and the expansion of the membership of the EU (and therefore, an increase in the diversity in criminal law and procedure throughout the Union) prompted a fresh examination of the strategy for improving cooperation in criminal matters. In 1999, the European Council agreed the Tampere Conclusions establishing that the principle of mutual recognition was to be the ‘cornerstone’ of judicial cooperation in both civil and criminal matters.8 A programme of measures setting out plans for implementing the principle of mutual recognition into criminal matters was agreed in 2001,9 with the strategy being further entrenched by developments under the Hague Programme agreed in November 2004.10

M. Mackarel & S. Nash. ‘Extradition and the European Union’ 46 ICLQ (1997) pp. 948, 955–956. Convention on Simplified Extradition Procedure between Member States of the European Union, adopted 10 March 1995 (1995) OJ C 78/1. Convention Relating to Extradition between the member States of the European Union, adopted 27th September 1996 (1996) OJ C 313/11. 6  Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, OJ C 197/3, 12.7.2000. 7  At the time of writing the latest draft was: Proposal for a Council Framework Decision on the European Evidence Warrant (EEW) for obtaining objects, documents and data for use in proceedings in criminal matters, Brussels, 10.7.2006, COM 11235/06 COPEN 74. 8  Tampere European Council Presidency Conclusions, 15/16 October 1999, para. 33. 9  Programme of measures to implement the principle of mutual recognition of decisions in criminal matters, OJ C12/10, 15.01.2001. 10  The Hague Action Plan: strengthening freedom, security and justice in the European Union. JAI 559, 16054/04, 13.12.04. Council and Commission Action Plan implementing the Hague Programme on strengthening freedom, security and justice in the European Union. JAI207, 9778/2/05 REV 2. 10.06.05. 4 

5 



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Mutual recognition, that is the process by which a decision or judgment handed down by the judicial authority in one member state is recognised and enforced by the judicial authorities of another, was a major change of approach to previous strategies within the EU to improving cooperation in criminal matters,11 whereas it had previously been a guiding principle in aspects of civil and commercial law with an EU wide system for the recognition of judgements in these fields. Indeed the Hague Programme of 2004 sets out an ambitious programme of civil law measures to be undertaken (particularly in the field of family law), again underpinned by the principle of mutual recognition.12 Given the growing experience of using the principle of mutual recognition across EU law, should there be specific concerns about its use in the field of criminal law and procedure that affects fundamental concepts such as individual liberty, fair trial and public safety? Can we really distinguish these priorities as being any more important than aspects of family law that are already the subject of a more advanced system of mutual recognition? For mutual recognition to function effectively and fairly, it has been suggested that the law requires some degree of comparability across Member States, that is some ‘approximation’, and in order to avoid a descent to the lowest common denominator in law and procedure, that there should be some minimum standards. These two issues are worthy of further note.13 2.1. Approximation A key feature of the EAW is the inclusion of a list of offences for which the principle of double criminality is abolished.14 Whilst some of these offences can be said to have been approximated or even harmonised throughout the EU, there are wide differences in others. A number of the offences included under the ‘list’ in the EAW are set out in other EU Framework decisions and measures and can be said to have some degree of harmonisation to the degree that they are entrenched into the domestic law of the Member States. These include, participation in criminal organisations, terrorism, trafficking in human beings, sexual exploitation of children and child 11  See however; Programme of measures to implement the principle of mutual recognition of decisions in criminal matters, OJ C12/10, 15.01.2001, which notes several instruments ‘already embodied … in various forums’ including: European Convention on the International Validity of Criminal Judgments of 28 May 1970; the Convention between the Member States of the European Communities on the Enforcement of Foreign Criminal Sentences of 13 November 1991, the European Convention of the European Union on Driving Disqualification of 17 June 1998, at p. 10. 12  The Hague Action Plan, op. cit., p. 31; Council and Commission Action Plan implementing the Hague Programme, op. cit., pp. 24–25. 13  See generally: S. Peers, ‘Mutual Recognition and Criminal Law in the European Union: Has the Council Got it Wrong?’, 41 CML (2002) Review 5. 14  EAW Art.2(2).

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pornography, corruption, fraud against the EC budget, money laundering, counterfeiting currency, computer related crime, environmental crime, facilitation of unauthorised entry and residence, racism and xenophobia, drug trafficking and forgery of means of payment. Additionally, there are crimes on the list that have a core meaning established under international instruments (for example, crimes under the jurisdiction of the International Criminal Court). Finally, there are core criminal offences that share close but not always identical requirements of actus reus and mens rea such as murder, rape and arson.15 However, there would seem to be no approximated meaning for offences such as ‘threats and acts of violence against persons, including violence during sports events’, criminal damage and even theft. Whilst the approximation of the crimes listed above might seem to suggest a good overall concurrence exists around these offences in the EU, it is not hard to find exceptions, for example; the offences of holocaust denial (Germany), the sale of sexually explicit photographs of adults who appear as children (Belgium) and the disparity between the extent of inchoate offences in criminal law (for example, the disparity in the meaning of ‘conspiracy’ between the United Kingdom and the Netherlands). Given these differences, one will appreciate that the application of mutual recognition to aspects of criminal law which lack approximation may entail requests for the surrender of persons for offences unknown in the issuing country. 2.2. Minimum Procedural Standards A substantial criticism of the application of mutual recognition to criminal matters lies in the lack of specificity of the rights afforded the accused or even the lack of fundamental rights altogether. A point made by organisations such as JUSTICE16 and Fair Trials Abroad17 is that there are no accompanying safeguards to assert the minimum standards for the rights of the accused to balance the removal of barriers to return under the new EAW surrender procedure and that there are circumstances where standards within the EU are unsatisfactory. Whilst the EAW does have some bars to surrender, a potential breach of fundamental rights in the issuing state is not explicitly listed amongst them. During the conferences and meetings this writer has attended over the past three years, representatives of various national prosecution agencies in the EU have argued (and it is always prosecution agencies that raise this argument) that S. Peers, loc. cit., pp. 29–31. See: ‘JUSTICE response to the Home Office consultation on the European Commission proposal on certain procedural rights in criminal proceedings throughout the European Union’. (May 2005) available at: . 17  See: . 15  16 



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the fact that all EU Member States are party to the ECHR means that ample safeguards are in place. Various arguments can be made against this being sufficient protection. All EU member states have judgments made against them by the European Court of Human Rights in respect of their criminal procedure with varying regularity. Applications to Strasbourg would of course be reactive to any alleged transgressions by Member States. The ECHR was purposefully drafted in broad terms so as to allow states some autonomy in how they entrench those rights and of course states have a ‘margin of appreciation’ in the extent to which those rights are protected. To apply a term from EC law to ECHR law, there is substantial ‘variable geometry’ concerning the protections for the accused in criminal proceedings throughout the EU.18 As far as flagrant breaches of fundamental rights are concerned, reference to the surrender process being subject to fundamental rights in the preamble to the EAW, ECHR case law (for example, the principles in the case of Soering v. United Kingdom19) and domestic practice (the UK’s Extradition Act 2003 includes an obligation on the Court to discharge the person if a request (warrant) would involve a breach of their fundamental rights20), all indicate that ‘obvious breaches’ should be protected against. However, it would seem that ‘obvious breaches’ as a bar to extradition might not always be as obvious as they may seem. A decision of the English High Court in November 2005 confirming the extradition to France of Rachid Ramda illustrates this.21 Ramda was challenging a request for his extradition request made by France prior to the EAW being in force. The case turned on the allegation by Ramda that the basis of the French Government’s case against him was a confession obtained from a co-defendant that might have been obtained by torture. The French Government argued that since France was party to the ECHR, its standards were integral to its criminal procedure and that in any case, Ramda would be entitled to make an application to the European Court of Human Rights for any alleged breach of his fair trial rights. To the British Government’s discomfiture, the High Court had previously found in 2002 that the possibility of an application to the European Court of Human Rights is insufficient to guarantee the defendant’s fair trial rights and cannot be relied upon to absolve its obligations under the principles of the Soering decision.22 18  S. Alegre & M. Leaf, ‘Mutual Recognition in European Judicial Cooperation: A Step Too Far Too Soon? Case Study – The European Arrest Warrant’ 10 E.L.R. (2004) p. 200. 19  Soering v. United Kingdom (1989) 11 EHRR 439, Series A, Vol. 161. 20  Extradition Act 2003 s.21. 21  Ramda v. Secretary of State for the Home Department (QBD (Admin)) Queen’s Bench Division (Administrative Court), 17 November 2005, [2005] EWHC 2526. 22  R. (on the application of Ramda) v. Secretary of State for the Home Department (QBD (Admin)) Queen’s Bench Division (Administrative Court) 27 June 2002 (2002) EWHC 1278.

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However, following further information obtained about the circumstances of the case, the then Home Secretary, Charles Clarke, authorised Ramda’s extradition in April 2005. A fresh High Court hearing found that if the tainted evidence risked an unfair trial in France, the French Court would be bound to exclude it. The High Court upheld the extradition order and Ramda was extradited to France on 1 December 2005.23 A more mundane concern relates to the wide discrepancies in basic safeguards for the accused across the EU. Basic criminal procedure varies widely across the EU. Even within the United Kingdom, the rules for the initial detention of suspects differ between Scotland and England and Wales. In an effort to ensure some uniformity in protections for suspects the subject of cooperation using ‘mutual recognition’ principles and in acknowledgement of concerns raised, the European Commission began work on a set of Minimum Standards in Procedural Safeguards in Criminal Proceedings in 200324 and produced a proposal for a Framework Decision in 2004.25 Negotiations over the drafts of the procedural rights have been protracted and the content has been limited to addressing four main issues: access to legal representation before and at trial; access to interpretation and translation for non-native defendants; protections for vulnerable suspects, consular access to foreign detainees and notifying suspects and defendants of their rights by way of a standard document to be translated and distributed to all persons arrested throughout the European Union (known as a Letter of Right). It is particularly unsatisfactory that these standards have not been agreed upon in advance of the operation of the EAW. Fears that Member States would dilute the proposals to very low thresholds in an unenforceable statement or worse still not produce any safeguards at all seem to be becoming realised. At the beginning of 2006, an informal Justice and Home Affairs Ministers meeting decided to cease work on the project despite the current Austrian Presidency of the EU restating its commitment to procedural safeguards.26 Formal negotiations on this project have currently stopped.

23  Ramda v. Secretary of State for the Home Department (QBD (Admin)) Queen’s Bench Division (Administrative Court), 17 November 2005, [2005] EWHC 2526. 24  European Commission. Green Paper on Minimum Standards in Procedural Safeguards in Criminal Proceedings, Brussels, 19.2.2003, COM (2003) 75 Final. 25  Commission Proposal for a Council Framework Decision on certain procedural rights in criminal proceedings throughout the European Union, Brussels, 28.4.2004, COM (2004) 328 Final. 26  Law Society (Joint Brussels Office) Brussels Office Law Reform Update Series, Judicial Cooperation in Criminal Matters, February 2006. p. 3.



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3. The European Arrest Warrant The EAW changes the underlying values, the standards, procedure and even the language of extradition in the EU. The traditional values of extradition as set down in the European Convention on Extradition 1957 are concerned with facilitating extradition whilst protecting state sovereignty and the rights of the individual. The standards and procedures set down under the EAW are overwhelmingly concerned with the quick and efficient facilitation of rendition with the basic protections for the individual left to the trial process in the Member State. In the drive away from ‘traditional extradition’, it has been pointed out that the Tampere Conclusions contain a number of inconsistencies.27 The European Council ‘urges Member States to speedily ratify the 1995 and 1996 EU Conventions’ whilst also stating ‘it considers that formal extradition procedure should be abolished among the Member States’. Contradictions such as these have served to compound the problems facing acceding states in implementing the programme for cooperation in criminal matters. Changes in procedural values are reflected in the language of the EAW. Gone are the ‘requesting’ and ‘requested’ states of the 1957 Convention. The terms now reflect the lack of discretion built into the new EAW scheme where member states are the ‘issuing’ and ‘executing’ authorities. Likewise, fugitives are no longer ‘extradited’ but under the new scheme ‘surrendered’. It is not the purpose of this paper to analyse the provisions of the EAW in detail.28 In brief, the ‘European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order’.29 The EAW allows for the issuing of warrants for offences punishable by the issuing Member State by a custodial sentence or detention order for a maximum of at least twelve months, or where sentence has been passed for sentences of at least four months.30 More controversially, the EAW can also be applied in respect of 32 listed offences to which the traditional rule of double criminality rule is abolished.31 The double criminality rule, that is the rule that the relevant 27  M. Plachta & W. van Ballegooij, ‘The Framework Decision on the European Arrest Warrant and Surrender Procedures Between the Member States of the European Union’, in R. Blekxtoon & W. van Ballegooij, Handbook on the European Arrest Warrant (The Hague 2005), p. 29. 28  For good overviews see: R. Blekxtoon & W. van Ballegooij, Handbook on the European Arrest Warrant (The Hague 2005); S. Alegre & M. Leaf, European Arrest Warrant – A Solution Ahead of its Time? (London 2003). 29  EAW Art. 1(1). 30  EAW Art. 2(1). 31  EAW Art. 2(2).

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act must be an offence in both requesting and requested states,32 is removed for acts that are both subject to at least 3 years imprisonment and classified under the 32 listed offences. Even for offences not on the list, surrender of persons only ‘may’ be subject to the requirement of double criminality.33 It has been suggested that if the issuing state places an alleged offence within the list that this is non-rebuttable,34 however the decision of the English High Court in Palar v. Court of First Instance of Brussels, suggests otherwise.35 Some of the offences on the EAW list are readily identifiable as criminal offences and share common, if not identical requirements for their commission throughout the Member States. Others are more vague. For example, what are the limits of ‘computer related crime’? Further, the offence of ‘swindling’ is unknown in English or Scots law. In seeking to accommodate offences under the criminal laws of the 25 member states, the Council have drawn the categories of offences very wide. These issues promise to provide interesting challenges for the national courts of Member States executing the warrants. The process of rendition under the EAW has been streamlined to a judicial process and warrants are issued by and to the judicial authorities of the issuing and executing state.36 The role of the executive is removed. The processing of the surrender request is an easy example of how the mutual recognition principle is incorporated into the practical process. The issuing state is required to submit a warrant (a form appended to the Framework Decision) with basic details of the offences and the offender along with contact details for the issuing authority.37 This is authenticated by a court in the issuing state and then transmitted to the executing state. The warrant is then approved by a court in the executing country – a process that should be a simple confirmation if the warrant has been completed correctly, and the surrender of the fugitive can then take place. Given the notoriety of extradition for being a slow process, it is worth noting that the process for executing the EAW is subject to strict time limits under Article 17 of the Framework Decision. Generally, contested warrants are to be executed within 60 days with an additional 30 days available for exceptional circumstances. Whilst it was originally envisaged ‘that the formal extradition procedure be abolished among member states … and replaced by a simple transfer’,38 it can be 32  33  34  35  36  37  38 

See for example the requirements of the European Convention on Extradition 1957, Art.2. EAW Art. 2(4). S. Peers, loc. cit., p. 14. Palar v. Court of First Instance of Brussels (2005) EWHC 915. See discussion, infra. EAW Art. 6. EAW Art. 8. Tampere European Presidency Conclusions, 15/16 October 1999, para. 35.



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argued that the EAW does not provide for automatic extradition or surrender on demand. Indeed, whilst the grounds for refusal of surrender are reduced compared to previous extradition standards the EAW does have mandatory and optional grounds for refusal.39 The mandatory grounds for refusal under Article 3 of the EAW relate to where the offence is covered by an amnesty in the executing state, a limited form of non bis in idem where the requested person has been sentenced and finally, where the subject of an EAW is not of sufficient age for criminal responsibility in the executing state. The optional grounds for non-execution of a EAW under Article 4 are (i) double criminality for offences outside of the 32 listed offences (ii) active proceedings for the same offences in the executing state (iii) non bis in idem (iv) two jurisdiction related grounds. A traditional restriction to return under extradition law, the non-extradition of nationals,40 is not a bar to surrender under the EAW.

4. The Implementation of the EAW Article 34(1) of the EAW sets down that ‘Member States shall take the necessary measures to comply with the provisions of this Framework Decision by 31 December 2003’. It was the firm intention of the Council that the EAW would be operative between Member States from 1 January 2004. 4.1. The View of the European Commission In its review of initial implementation,41 the European Commission noted that only thirteen Member States had met the deadline for implementation with one Member State (Italy) completing its implementation 16 months behind schedule.42 An earlier draft of this Report had vaguely attributed the delays to unspecified ‘transitional difficulties’43 whilst the revised version notes only that the delay ‘caused temporary difficulties’. Although the delay did result in the full operation of the EAW falling behind schedule, the timescale for the entry into force of the EAW throughout the EU was a great success compared to some previous agreements.

EAW Arts. 3 and 4. See for example, European Convention on Extradition 1957, Article 6. 41  Report from the Commission based on Article 34 of the Framework Decision of 13 June 2002 on the European Arrest warrant and the surrender procedures between member States (revised version). Brussels, 24.1.2006. COM(2006) 8 final. 42  Ibid. p. 2. 43  See earlier draft, Brussels, 23.02.2005. COM (2005) 63 final. 39  40 

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However, the EAW has not been implemented in a uniform way throughout the EU. Domestic constitutions and national law have at times struggled to incorporate the requirements of the Framework Decision and this has resulted in some variation as to how the EAW is applied throughout the Member States. Some of this variation results from the discretion afforded Member States by the Framework Decision itself. Thus, whilst all Member states have incorporated the mandatory grounds for refusal of an EAW, ‘the optional grounds transposed vary considerably from one Member State to the next’.44 Likewise, all Member states are reported to have included the very basic requirements relating to the rights of the requested person under Article 11 of the EAW,45 however the drafting of the text allowing information and assistance to the suspect to be given ‘in accordance with the national law of the executing Member State’ has naturally resulted in a variance of practice amongst member states. More problematically, the Commission reports various instances where Member States have exceeded the requirements of the Framework Decision or are applying it in a way not anticipated during negotiation. The Commission identifies a number of instances where Member States have implemented the EAW on terms that do not comply with the Framework Decision. Thus for example, the Netherlands, Austria, Poland and United Kingdom have reduced the substantive application of the EAW under Articles 2 and 4(7) by raising the threshold for sentences in domestic law to which the EAW can be applied. Further, Belgium, Poland, Slovenia, Estonia, Greece and France have reintroduced or allowed the possibility of a check on double criminality for offences under Article 2.46 The Czech Republic has introduced a reciprocity clause into domestic law for the application of the EAW and operates a conversion system for sentences imposed on its nationals under Article 4(6). These alterations are not foreseen by the EAW.47 The Commission reserves special concern for provisions made in addition to the Framework Decision by Member States and in particular highlights the inclusion of a right of refusal for the violation of fundamental rights or on the basis of discrimination which again exceeds the grounds for refusal set out in the Framework Decision. Moreover, other Member States (Denmark, Italy, Malta, Netherlands, Portugal and the United Kingdom have all additional grounds for refusal ‘such as political reasons, reasons of national security or ones involving examination of the merits of the case’.48 Some Member States have chosen to add further procedural requirements for the execution of warrants ‘such as the 44  45  46  47  48 

Report from the Commission, op. cit., p. 4. Ibid. p. 6. Ibid. p. 3. Ibid. p. 5. Ibid. p. 5.



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obligation to attach items or documents not stipulated on the EAW standard form (Article 8(1)) or to issue a separate warrant for each offence’.49 Whilst the EAW is aimed at improving the speed of surrender over previous extradition arrangements and specific time limits are set down in the Framework Decision for the execution of warrants (see Articles 17 and 25), the Commission has already observed that the time limits may be subject to erosion, noting that ‘some Member States have not agreed to put a time limit on their higher courts, or have set a maximum period for the proceedings which could exceed the norm of 60 days or even the ceiling of 90 days in the event of a final appeal’.50 In addition to the problems of differential transposal into national law by Member States, the Commission commented on some problematic issues of practice by judicial authorities executing warrants. The Commission highlighted ‘the practice of certain judicial authorities which, while invoking their powers (Article 4(2) and 4(7)), refuse to execute warrants in the case of nationals, but do not themselves carry through the prosecutions.’51 These breaches seem extraordinary given that the terms of the Framework Decision are not imposed upon the Member States but are terms that were negotiated and agreed by the Council themselves. Whilst the Commission’s Report does seem to indicate that implementation by the Member States has fallen short of what had been envisaged by the Council when the Framework Decision was concluded, the overall performance of the EAW in its early stages of operation has been positive. The Commission observes that the much criticised list of 32 categories of offences for which double criminality is abolished set out in Article 2(2) has not caused any particular difficulties in implementation by Member States (save for Italy).52 Further, that the surrender of nationals, ‘a major innovation in the Framework Decision’ has become widely accepted53 and that some particular features of the EAW, such as ne bis in idem, access to a lawyer, reviews of detention and the deduction of detention periods from the final sentence, have actually improved aspects of the rights of the accused over previous extradition practice.54 The Commission also highlight the dramatic improvements in the time taken to effect rendition, pointing out that contested warrants are taking on average 43 days to execute (as opposed to 9 months for extradition proceedings) and

Ibid. p. 6. Ibid. p. 6. 51  Ibid. p. 5. 52  Ibid. p. 3. The Commission did however note that ‘It is still regrettable that a few member States thought that it did not cover attempted and complicit acts’. 53  Ibid. p. 4. 54  Ibid. p. 7. 49  50 

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that where a person consents to their surrender, the procedure takes only 13 days on average.55 Overall the Commission’s Report sets out a positive perspective on the initial phase of the EAW’s operation but this rosy view is clouded by the failures in implementation that have dented the level of performance that might have been achieved. This can perhaps be exemplified by the Report on the one hand highlighting the successful execution of a number of EAWs (including the Hussain Osman Case) by Italy, the last Member State to implement the Framework Decision56 whilst also concluding that ‘[t]his overall success should not make one lose sight of the effort that is still required for certain Member States … to comply fully with the Framework Decision and for the Union to fill certain gaps in the system’.57 The Commission barely allude to a number of serious constitutional challenges to the EAW in a number of Member States, the outcomes of which have, and may continue to, significantly impede the full operation of the EAW across the Union. These will be considered later in this paper. In an annex to its Report, the Commission sets out a detailed analysis of how each article of the EAW has been implemented by the Member States. The Commission identify the extent to which each Member State has fully transposed the Framework Decision in national law. A number of Member States are unhappy with the analysis of the Commission and the Home Office in the United Kingdom has published an explanatory memorandum rebutting some of the criticisms made of the UK’s implementation by the Commission.58 For example, the European Union Committee of the United Kingdom House of Lords highlight the Commission’s criticism of Belgium for excluding abortion and euthanasia from the offence of ‘murder or grievous bodily harm’ within the 32 listed offences under the EAW.59 Clearly there are circumstances where abortion and euthanasia may be lawful under national law and ‘their categorisation raises difficult questions of fundamental rights and morality.’60 An early task for the Commission and Member States is to reconcile these conflicting analyses and identify remaining issues of implementation that are impacting on the manner of the EAW’s practical application.

Ibid. p. 5. Ibid. p. 4 57  Ibid. p. 7. Ten Member States are listed: Czech Republic, Denmark, Estonia, Ireland, Italy, Luxemburg, Malta, Netherlands, Slovenia and the United Kingdom. 58  A copy of the Explanatory Memorandum is appended to: House of Lords, European Union Committee, 30th Report of Session 2005–06, European Arrest Warrant – Recent Developments. Report with Evidence, HL Paper 156. 59  Ibid. p. 7. 60  Ibid. 55  56 



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4.2. The View of Eurojust Eurojust provides a further source of appraisal on the early phase of operation of the EAW. Eurojust was established by the European Council in 2002 as a body to improve the coordination and further cooperation in investigations and prosecutions between the Member States, ‘in particular by facilitating the execution of international mutual legal assistance and the implementation of extradition requests’.61 Under the EAW, Eurojust may be involved in the surrender process in two instances. Under Article 16, an executing Member State may seek the advice of Eurojust where there are multiple requests. Under Article 17(7), Member States unable to meet the time limits for surrender set out under the EAW must inform Eurojust with the reasons for delay.62 In its Annual Report of 2004,63 Eurojust set out some examples of their work in relation to the EAW and also provide an overview of the early stages of implementation of the EAW. The 2005 Annual Report adds some additional information.64 Eurojust notes a particular problem with the EAW in its case work whereby a EAW issued by the Slovak Republic for the surrender of a fugitive in Belgium was not passed on to the correct judicial body in Belgium because the EAW had been transmitted through Interpol and not the expected route of the Schengen Information System (SIS). Eurojust highlight that the technical limits of the SIS are unable to accommodate the ‘new’ EU Member States,65 and that in this instance Belgium had failed to appreciate this. The Report concludes that ‘Eurojust would like to underline the importance and effectiveness, where possible, of direct transmission between the issuing and executing judicial authorities.’66 The Report also sets out the first case remitted to Eurojust under Article 16 of the EAW for advice on resolving conflicts of jurisdiction in the case of multiple requests. Eurojust provided advice to the Netherlands in respect of warrants from Belgium and Germany for the same individual. The offence was a complex fraud with elements of the offence taking place in both Belgium and Germany. Eurojust assisted in negotiating a prosecutorial solution which took account of the location of the evidence and national law and with which all parties were satisfied.67 61  Council Decision of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime. OJ L 63/1, 28.2.2002. See especially, Article 3. 62  See further: J.L Lopes da Mota & R.J. Manschot, ‘Eurojust and the European Arrest Warrant’, in R. Blekxtoon & W. van Ballegooij, op. cit., p. 63. 63  Eurojust, Annual Report 2004. Available at: . 64  Also available at: . 65  That is those states acceding to the Union on 1 May 2004. 66  Eurojust, Annual Report 2004, pp. 36–37. 67  Ibid. p. 38.

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Perhaps the most significant work undertaken by Eurojust in respect of the EAW in 2004 was the hosting of a strategic meeting in Prague for representatives of all of the Member States, the European Judicial Network, the Council Secretariat and the European Commission.68 The main objectives of the meeting were to consider the legal and practical implementation of the EAW. The meeting focused on three major areas of discussion, the identification of obstacles to the execution of warrants, guidelines for competing warrants and the breaching of time limits. The meeting took place in October 2004, and whilst the EAW had not been in full operation in all Member States, there had been opportunity for some use of the warrants between those Member States who had fully implemented the Framework Decision. The meeting identified a range of practical problems that had been encountered in this early phase of operation of the EAW.69 Some of these reflected those points made subsequently by the European Commission.70 In reviewing these problems, the Eurojust Report concludes that: Initial experience … [of the EAW] … indicates that it will take both time and some amendments in order to be fully effective. Despite the fact that almost all Member States have implemented the EAW … into their national legislation, they did so according to their own methods of implementation, each with their own requirements. The problem so far encountered by Member States consists of insufficient regulation of the communication language, delivery terms and means of translation. Concerning the transmission of the warrant, it seems that there is no uniformity. It appears that in the near future clarification as well as unification of the ways of transmission should be put in place so that the system works more effectively.71

As with the Commission’s Report, many of the operating problems with the EAW are laid at the door of the Member States and the manner of national implementation. Whether the ‘amendments’ referred to in Eurojust’s conclusions above are of the Framework Decision itself or to national implementing legislation is unclear. The second major discussion point of the meeting concerned guidelines for deciding between competing EAWs. Given Eurojust’s advisory role to executing judicial authorities over multiple requests under Article 16(2) of the Framework Decision, the Report makes the point that ‘effective and early co-ordination between the competent authorities of the Member States concerned, before the issue of an EAW, should minimise the number of cases of multiple requests for the same person.’72 The Report sets out guidelines for a range of circumstances 68  69  70  71  72 

An account of this meeting is set out in the Eurojust, Annual Report 2004, pp. 80–88. Ibid. p. 80. See earlier discussion above. Eurojust, Annual Report 2004, p. 82. Ibid. pp. 82–83.



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for which multiple requests might be received and the factors to be considered in choosing between warrants. This guidance built on criteria published in the Eurojust Report of 200373 for deciding which jurisdiction should prosecute in multi-jurisdictional cases.74 It should be added that in the 2004 Report, Eurojust offered to provide assistance to judicial authorities of any Member State in deciding prosecutorial strategy in these circumstances, not only executing authorities as stated in Article 16(2) of the Framework Decision.75 The final significant aspect of discussion from the Prague Meeting concerned the breaching of the very strict time limits for surrender set under the Framework Decision.76 Eurojust found that Member States had regularly overlooked their obligation under Article 17(7) of informing Eurojust of the reasons for such delays.77 Comprehensive data was seemingly unavailable, however, Eurojust found that the number of occasions time limits were breached was low (14 reported instances). For reasons that are not fully explained, the United Kingdom had the greatest number of refusals (8).78 Reasons for refusal varied widely but often concerned appeals on various grounds overrunning the time limits. Some of these appeals successfully challenged the initial refusal to execute the warrant.79 Note is made of the United Kingdom not complying with Article 24 of the Framework Decision by delaying the hearing to decide proceedings with the execution of a warrant until after sentence has been served in the UK rather than holding the hearing on the warrant with a view to the warrant being executed on the conclusion of the sentence being served by the requested person.80 Eurojust’s work in improving the co-ordination of cooperation in criminal matters is ongoing, and the Annual Report of 2005 notes further meetings to discuss the practical problems relating to the functioning of the European Arrest Warrant.81 4.3. The United Kingdom Response to the European Commission’s Criticisms The Home Office in the UK has responded to the criticisms of the European Commission in an Explanatory Memorandum submitted to the House Of Lords Committee on the European Union on 20th February 2006.82 In this Available at: . Also reprinted in the Eurojust, Annual Report 2004, Annex IV. 75  Eurojust, Annual Report 2004, p. 86. 76  See Articles 17 and 25, discussed above. 77  Eurojust, Annual Report 2004, p. 87. 78  Ibid. p. 87. 79  Ibid. 80  Ibid. 81  Eurojust, Annual Report 2005, op. cit., p. 6. 82  House of Lords, European Union Committee, 30th Report of Session 2005–06, European Arrest Warrant – Recent Developments. Report with Evidence, p. 1. 73  74 

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memorandum, the Home Office takes issue with the majority of criticisms levelled at the UK implementation of the EAW. Whilst the tone of the Home Office memorandum towards the criticisms of the Commission is very defensive, further reading suggests the Commission’s comments that the strict requirements of the Framework decision have not been met are at points justified. Thus the Commission’s criticism that the UK has not transposed the threshold for sentences for offences to which the EAW can be applied (Articles 2 and 4 of the EAW) is acknowledged but defended by the Home Office. Thus, in conceding that the strict requirements of the Framework Decision are not reflected in the Extradition Act 2003, the Home Office (in relation to Article 4) states ‘whilst the Commission has made a valid point, that there is no need for them to be concerned at how we have implemented this provision in national law.’83 Whilst the Home Office agrees that some of the grounds for mandatory grounds for refusal of an EAW under Article 3 of the Framework Decision have not been fully transposed into national law there are very good reasons for this, namely that amnesties for criminal offences are not available under the criminal law throughout the United Kingdom and that the requirements of other international treaties (for example the Hostage Taking Convention of 1979) must be complied with. It should be noted that the Home Office does not agree and the UK has introduced a double jeopardy test in section 12 of the Extradition Act 2003 applying to EAW requests which adopts different standards to those set out in Article 3(2) of the Framework Decision.84 Whilst this writer agrees with the Home Office view that they ‘have transposed the provisions of Article 3(2) correctly’, the drafting language of the 2003 Act is very different to that of the Framework Decision.85 Incidental to this point is that the meaning of ‘finally judged’ in the UK is now muddied by the recent ability of the Court in England and Wales or Northern Ireland to allow a retrial for a serious offence where there is new and compelling evidence.86 It is suggested that potentially, this may provide circumstances under the Extradition Act 2003 where a Court in England and Wales or Northern Ireland would now allow for the surrender of an accused to face trial in similar circumstances. Thus, the responses given by the Home Office to the Commission criticisms include ‘unimportant’ differences of transposition into national law, national law not recognising the legal concept identified by the Framework Decision and the conflict of international obligations. The United Kingdom has generally been enthusiastic about the introduction of the EAW and met the deadlines for its initial implementation, so it is hard to view the divergence between the 83  84  85  86 

Ibid. Report with Evidence p. 3. Ibid. Report with Evidence p. 2. Ibid. Criminal Justice Act 2003 s.75



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requirements of the Framework Decision and national law in the United Kingdom as a deliberate refusal to fulfil the aims of the EAW. What therefore, lies behind these problems and similar problems identified by the Commission relating to the implementation of a wide range of Member States? The responses of the Home Office in the United Kingdom suggest that among the underlying explanations for some of the initial implementation problems of the EAW are the difficulties of applying a mutual recognition policy to the disparate systems of criminal law and procedure of the twenty five Member States and the problems of Member States themselves (through the Council) negotiating a Framework Decision without a full understanding of how the fine detail of the Framework Decision is to be transposed into national law. The response of the Home Office to the Commission’s comments in relation to Article 8 of the EAW hint at another possible issue for the United Kingdom. The Commission suggest the United Kingdom (and Malta) have not transposed the requirement for information to be included in an EAW or the use of the form appended to the Framework Decision into national law. The Home Office response concedes that under the Extradition Act 2003, this is correct but that ‘[I]n practice, the UK judicial authority uses the template EAW which can be found attached as an annex to the Framework Decision.87’ In the Explanatory Memorandum, the Home Office explains that Part 1 of the Extradition Act 2003 sets down a faster and less rigorous procedure for extradition to ‘favoured’ countries, currently the Member States operating the EAW. However, the Home Office note that ‘[I]t is possible for a non-EU Member State to be designated under Part One of the Act providing they do not operate the death penalty.’88 Thus, the scheme established under Part 1 of the 2003 Act operates an expedited extradition system in respect of both EU Member States and potentially other non–EU countries, rather than specifically setting down the ‘surrender’ system established for the EAW under the Framework Decision. It would appear that in reworking ‘extradition’ to apply to a broad range of countries, that the concept of ‘surrender’ envisaged under the EAW has been diluted and that this lies at the root of the criticisms made by the Commission. This view of the Extradition Act 2003 is shared by the House of Lords. In Office of the King’s Prosecutor (Brussels) v. Cando Armas,89 Lord Bingham stated that ‘Part 1 of the 2003 Act did not effect a simple or straightforward transposition [of the EAW], and it did not on the whole use the language of the Framework Decision. But its interpretation must be approached on the twin assumptions that Parliament did not intend the provisions of Part 1 to be inconsistent with the Framework House of Lords, Report with Evidence, op. cit., pp. 3–4. Ibid. Report with Evidence p. 3. 89  Office of the King’s Prosecutor (Brussels) v. Cando Armas, [2005] UKHL 67, [2006] 2 A.C. 1, [2005] 3 W.L.R. 1079, [2006] 1 All E.R. 647. 87  88 

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Decision and that, while Parliament might properly provide for a greater measure of cooperation by the United Kingdom than the Decision required, it did not intend to provide for less.’90

5. Challenges to Implementation at National Level Whilst the EAW was implemented in the national law of all Member States by April 2005, there have been a number of legal challenges to the validity of the EAW, both before national courts and the European Court of Justice. These cases have had the effect of restricting the use of the EAW by some Member States until the legal problems are rectified under the relevant national law and in one case, the premise under which the EAW has been established is currently under challenge. The main cases are noted here. 5.1. Germany In July 2005, the German Federal Constitutional Court ruled that the EAW was unconstitutional and therefore void.91 The hearing arose from a challenge by a complainant with both German and Syrian nationality to an EAW issued by Spain. It was alleged that the complainant was a key figure in the European wing of Al-Qaida and he was accused of participation in a criminal association and of terrorism. The EAW was issued for exactly the sort of offences that the European Council had in mind when proceeding with the EAW initiative.92 In short, the Federal Constitutional Court dismissed the legality of the German legislation implementing the EAW on two grounds. Firstly, it found that the national implementation of the EAW breached the requirements of Article 16(2) of the German Constitutional Law (Grundgesetz). Article 16 protects the German citizen’s connection with their own legal order and this includes (under Article 16(2)) the right to be free from extradition unless certain requirements are met. The Court found that the national legislation implementing the EAW did not provide for a satisfactory assessment of the circumstances of the offence or the rights available to the individual following surrender under an EAW to another Member State. Further, that the implementing legislation did not At para. 8. An translation in English of this judgment is available at: . See also: S. Molders, ‘Case Note – The European Arrest Warrant in the German Federal Constitutional Court’ 7 German Law Journal (2006) Available at: ; A.H. Parga, ‘Bundesverfassungsgericht (German Constitutional Court), Decision of 18 July 2005 (2 BvR 2236/04) on the German Arrest Warrant Law’ (2006) 43 C.M.L. Rev. 583. 92  The European Commission had first submitted a proposal for a Framework Decision on the 19th September 2001, immediately following the terrorist attacks on Washington and New York on the 11th September. 90 

91 



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allow for the optional refusal of a warrant permitted under Article 4(7) of the Framework Decision for offences committed in whole or in part in the territory of the executing state or where offences committed outside of the territory of the executing Member State cannot be prosecuted in the executing member state. The second ground for rejecting the validity of the German implementing legislation of the EAW relates to the failure to meet the requirement under Article 19(4) of the German Constitutional Law to provide recourse to a court hearing to review the surrender. Molders makes the point that this problem might have been avoided had the German legislature chosen not to depart from the requirements of the EAW and made the surrender procedure subject to a solely judicial process.93 The decision of the German Federal Constitutional Court has been a blow to the operation of the EAW. Not only has the execution of warrants been suspended in Germany until the implementing legislation is amended, but some Member States, such as Spain will only enforce warrants on the basis of reciprocity. The Spanish High Court subsequently ruled that the principle of non-reciprocity should apply and this has reportedly led to the annulment of approximately 60 German warrants seeking German nationals in Spain.94 The German Parliament approved new legislation to implement the EAW on 7 July 2006, however until the legal position was amended, the ‘old’ pre-EAW extradition arrangements applied between the two countries. 5.2. Poland The decision of the German Constitutional Court was pre-dated by a decision made on similar issues by the Polish Constitutional Court. On the 27 April 2005, a Polish Court ruled that under Polish extradition law, Poland cannot validly surrender its nationals under the EAW.95 Article 55(1) of the 1997 Polish Constitution prohibits the extradition of Polish nationals. In implementing the EAW, the Polish Government amended the Criminal Procedural Code of 1997 to allow for the ‘surrender’ of nationals under the EAW. The Constitutional Court found that ‘surrender’ and ‘extradition’ could not be distinguished as both involved the transfer of a person to another country for prosecution or to serve sentence, thus the Constitutional bar to extradition remained in respect of the EAW.

Molders, op. cit., p. 7. . 95  An unofficial translation has been provided by the Polish Constitutional Tribunal and can be found in: ‘Re Enforcement of a European Arrest Warrant’ [2006] 1 C.M.L.R. 36. A summary in English of the Court’s judgment can be found at: . 93  94 

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However, the Polish Constitutional Court found that EAW ‘has crucial significance for the functioning of the administration of justice and, primarily, as a form of cooperation between Member States assisting in the fight against crime – for improving security’ and the Court has suspended the effect of its judgment and allowed the implementing legislation for the EAW to remain in force for eighteen months pending its revision. 5.3. Cyprus On 7 November 2005, the Cypriot Supreme Court also held that it would be unconstitutional for Cyprus to allow the surrender of Cypriot nationals under the EAW.96 Following this decision, amendments to the Constitution have already come before the Cypriot Parliament.97 5.4. Belgium A significant legal challenge to the EAW has been made before the Belgian Courts and this has been referred on to the European Court of Justice (ECJ).98 Potentially, this legal challenge poses the greatest threat to the continued operation of the EAW and questions the use of Framework Decisions by the Member States in establishing instruments pursuing the policy of mutual recognition. A Belgian organisation, ‘Advocaten voor de wereld’ applied to the Belgian Court of Arbitration to have the Belgian legislation implementing the EAW annulled. The organisation argued that the use of a Framework Decision to establish the EAW was not an appropriate legislative instrument under EU law. Article 34 of the Treaty on European Union allows the adoption of ‘framework decisions for the purpose of approximation of the laws and regulations of the Member States.’ It is argued that the EAW simply removes any double criminality requirement for surrender rather than harmonises law, and that by including exceptions to the double criminality requirement for the 32 listed types of offences, the EAW offends Article 6(2) of the Treaty on European Union, the principles of legality in criminal proceedings, equality and non-discrimination. Belgium is continuing its full implementation of the EAW pending the decision by the ECJ. The United Kingdom House of Lords European Union Committee surmised that ‘[t]his challenge is potentially far more serious than the German, Polish 96  Decision of 7 November 2005. Discussed in: House of Lords, European Union Committee, 30th Report of Session 2005–06, European Arrest Warrant – Recent Developments. Report with Evidence, p. 10. 97  Z. Deen-Racsmány, ‘The European Arrest Warrant and the Surrender of Nationals Revisited: The Lessons of Constitutional Challenges’ 14 Eur. J. Crime Cr. L. Cr. J. (2006) p. 271, at p. 292. 98  Reference for a Preliminary ruling of 13 July 2005 from the Arbitargehof (Belgium) in the proceedings between Advocaten voor de wereld, a non-profitmaking association, and the Council of Ministers, (Case C-303/05).



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and Cypriot cases because the very use of a Framework Decision, instead of a Convention, to adopt the EAW is at issue.’99 It is anticipated that the case will be heard by the ECJ towards the end of 2006 with a judgment delivered in early 2007. Prior to the ECJ hearing the Advocate-General has rejected the arguments.100 Some observers have suggested that a decision in favour of the arguments of ‘Advocaten voor de wereld’ would not fatally wound the operation of the EAW.101 This view seems hard to support given it would require the national implementing legislation of Member States to infringe basic requirements of EU law. The alternative outlook for the EAW being quickly and effectively transposed into a Convention does not seem bright given the history of EU conventions concerning cooperation in criminal matters discussed previously. 5.5. Other cases There have been three other notable cases heard before national courts challenging the validity of the EAW. A challenge to the implementing legislation in Ireland was rejected following the first extradition order made under the EAW scheme. The case took just under one year from arrest to final appeal judgment, well over the time limits set out in the Framework Decision.102 The EAW was upheld by the Greek Constitutional Court.103 It is also reported that on 3 May 2006, the Czech Constitutional Court ruled that the surrender of Czech nationals to other EU Member States was lawful.104

6. Using the EAW – The United Kingdom Experience The EAW was implemented into UK law under the Extradition Act 2003. The UK numbered amongst those Member States who implemented the Framework Decision to meet the Framework Decision’s intended date for the EAW entering into force – 1 January 2004. In reviewing the EAW in early 2006, the House of Lords European

House of Lords, Report with Evidence, op. cit., p. 12. Reference for a Preliminary ruling of 13 July 2005 from the Arbitargehof (Belgium) in the proceedings between Advocaten voor de wereld, a non-profitmaking association, and the Council of Ministers, (Case C-303/05). Opinion of Advocate General Ruiz-Jarabo Colomber, 12 September 2006. 101  A. Doobay, ‘Implementation of the EAW’, paper delivered at JUSTICE / Sweet and Maxwell Conference on Extradition, Deportation and Rendition, London, 31 March 2006. 102  Ibid. 103  House of Lords, Report with Evidence, op. cit., p. 10. Evidence p. 15. Deen-Racsmány, op. cit., pp. 288–290. 104  Law Society (Joint Brussels Office), Brussels Office Law Reform Update Series, Judicial Cooperation in Criminal Matters, June 2006, p. 7. 99 

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Union Committee took evidence that provides a useful overview of the early period of use of the EAW in the UK. Statistics indicate that all Member States are making steady use of the EAW in obtaining fugitives throughout the EU. During the period between 1 January 2004 and 22 February 2006, the UK received an enormous 5732 EAWs of which 175 resulted in arrest with 88 people surrendered.105 On first sight the number of requests received by the UK is very high, but this figure is inflated and unrepresentative due to many EAWs being circulated to all member States by the Schengen Information System or via Interpol. Thus some of the requests may not be specifically directed at the UK and of these, ‘very few have turned out to have a connection with the UK’.106 Despite the number of incoming warrants, the National Criminal Intelligence Service (NCIS) (now replaced by the Serious Organised Crime Agency) did not perceive any problems with workload because warrants tended to make it clear whether there was specific knowledge of the suspect’s whereabouts in the UK and the warrant could be given priority accordingly.107 During the same period, the UK issued 201 warrants which have resulted in 90 arrests with 69 people returned to the UK. Whilst some of those requests were ongoing, the failed requests were due to fugitives not being located in the requested state and in one case the EAW failed following the judgment of the Supreme Court of Cyprus declaring it unconstitutional to surrender Cypriot nationals.108 In general, the experience of the UK in using the EAW has been very favourable in comparison to previous extradition arrangements within the EU. Some confidence is building in the EAW framework with more requests being submitted, processed more efficiently, with a greater rate of return and in a shorter timescale. Two high profile cases illustrate its successful application in relation to both terrorism investigations and other serious offences. An indicative case of how well the EAW can operate is the Hussein Osman Case of 2005. Following the failed bombing attempts in London in July 2005, one of the suspects was traced to Italy. Italy has in the past, proved to be a country where extradition proceedings have taken an extended period of time. A warrant for the arrest and surrender of Osman was issued on the 26 July. He was arrested on the 28 July. Osman contested his surrender and after hearings on appeal, the Italian Supreme Court confirmed the surrender on the 8 September. Osman was returned to the UK on 22 September. 105  106  107  108 

House of Lords, Report with Evidence, op. cit., p. 9. Ibid. House of Lords, Report with Evidence, op. cit., p. 13. Ibid. This judgment is discussed above.



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The EAW was also seen to operate very successfully in relation to another well-publicised case in the UK. An EAW was issued to Spain and Portugal in respect of Hugo Quintas, a Portugese national, in June 2005. Quintas was sought for the murder of his pregnant girlfriend in the UK. Following his arrest in Spain on 21 June, his extradition was ordered on 23 June and he was returned to the UK on 29 June.109 Quintas was subsequently convicted of murder and sentenced to life imprisonment.110 6.1. EAW Cases before the United Kingdom Courts Whilst most cases relating to the EAW coming before the courts in the United Kingdom have turned on their facts, a small number of cases have examined the technical operation of the EAW in the United Kingdom. The legal issues have often concerned the requirements of the surrender process as it has been implemented under the Extradition Act 2003.111 The House of Lords in Cando Armas considered the means by which the EAW has been transposed into the domestic law of the United Kingdom.112 In a passage that reflects some of the criticisms of the United Kingdom’s implementation of the EAW raised by the European Commission (discussed above), Lord Hope acknowledged that the needs of fighting transnational crime needed to be balanced against the rights of the individual subject to surrender, but that ‘[u] nfortunately this is not an easy task, as the wording of Part 1 of the 2003 Act does not in every respect match that of the Framework Decision to which it seeks to give effect in domestic law. But the task has to be approached on the assumption that, where there are differences, these were regarded by Parliament as a necessary protection against an unlawful infringement of the right to liberty.’113 With this in mind, Lord Scott found that the even the most basic conditions for surrender set out under the Extradition Act 2003 must be complied with including here, that the warrant must incorporate a statement that the warrant is for the purpose of pursuing a prosecution or for the enforcement of a sentence.114 In his view ‘[t]he requirement that an arrest warrant must contain one or other of these statements seems to me to be a natural and desirable feature of an extradition system that does not permit the merits of the extradition request House of Lords, Report with Evidence, op. cit., p. 10. The Guardian, 30 March 2006, p. 13. 111  Many of these cases were identified and discussed in a paper by Helen Malcom, Barrister at the JUSTICE / Sweet and Maxwell Conference on Extradition, Deportation and Rendition, London, 31 March 2006. 112  Office of the King’s Prosecutor (Brussels) v. Cando Armas, [2005] UKHL 67, [2006] 2 A.C. 1, [2005] 3 W.L.R. 1079, [2006] 1 All E.R. 647. 113  Ibid, W.L.R. pp. 1090–1091. 114  Extradition Act 2003, ss. 2(3) and 2(5). 109  110 

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to be investigated by the judge who is asked to order the execution of the arrest warrant. At the least, the state seeking extradition can be, and under section 2 of the Act is, asked to commit itself to the propriety of the extradition. These statements are not, in my opinion, formalities. They form an important part of the new extradition procedure.’115 However, the view of Lord Scott is seemingly in contrast to the less strict approach set down by Lord Hope: ‘It would be unduly strict in these circumstances to insist that a statement must appear in the actual words used in section 2(5) if a European arrest is to qualify as a Part 1 warrant. The purpose of the requirement is to provide protection against an unlawful infringement of the right to liberty, so it is an important part of the procedure provided for by Parliament. But the court should be slow to construe those words in a way that would make it impossible to give effect to a warrant which is in the terms which the Framework Decision has laid down. The purpose of the statute is to facilitate extradition, not to put obstacles in the way of the process which serve no useful purpose but are based on technicalities.’116 Even though it is not mentioned or referred to in Lord Hope’s dictum, his words reflect the purposive approach towards national implementing legislation set down by the ECJ in Pupino.117 The ECJ declared in Pupino that there is an obligation on Member States to interpret national implementing legislation in the light of framework decisions. This obligation is applied to third pillar matters in the area of freedom, justice and security for the first time. The ECJ held that ‘when applying national law, the national court that is called upon to interpret it must do so as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with Article 34(2)(b) TEU.’118 In Cando Armas, the House of Lords suggest that since the EAW provides very limited grounds for refusal of surrender, nor scope for the judicial authority of the requested state to inquire into the purpose of extradition, that if the basic requirements of the EAW (as transposed under national law) are not fully complied with or at least ‘unequivocally implied’ then ‘the warrant is bad’.119 These factors were considered very shortly afterwards in the case of ParasilitiMollica v. The Deputy Public Prosecutor of Messina Italy,120 where neither part of the EAW indicating whether the arrest was for prosecuting or executing sentence had been deleted. The court found that it permissible to look at the warrant as a whole and deduce that, in this case, the warrant was for pursuing 115  116  117  118  119  120 

Cando Armas, loc. cit. W.L.R. p. 1100. Ibid. W.L.R. p. 1097. Criminal proceedings against Maria Pupino, Case C-105-03. Judgment of 16 June 2005. Pupino, loc. cit., para. 43. Ibid. Lord Scott at W.L.R. pp. 1099–1100. Parasiliti-Mollica v. The Deputy Public Prosecutor of Messina Italy, [2005] EWHC 3262.



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a prosecution. Lord Justice Hooper added the rebuke, ‘… the expense and time that was taken for this matter to be investigated before the District Judge and before this court could have been saved if the words “sought in order to face trial in Italy” had appeared in the European arrest warrant. … I would invite those who are responsible for liaising with foreign governments over the application and use of the warrant to draw these words to their attention.’121 In Palar v. Court of First Instance of Brussels,122 the Court found that whilst scrutiny into the sufficiency or quality of evidence supporting the request for surrender is not permitted, it was able to consider whether the description of the alleged conduct was fair and accurate and was capable of constituting the extradition offences set out. Some categories of information set out within an EAW, are not capable of challenge. Thus in Enander v. Governor of HM Prison Brixton,123 it was a matter for each individual Member State to designate which body was the relevant judicial authority. Thus, although ‘Superintendant, Head of Sirene, Sweden’ was not on the face of it, a judicial body, the classification of it as such by the Member State determined the issue. In Hunt v. Court of First Instance, Antwerp,124 the court found that the warrant failed on the procedural point that it did not stipulate the provision in Belgian law on which the prosecution was based. Notwithstanding this failure, any subsequent warrant would fail on the basis that the undue delay of eight years in pursuing the case would render the extradition to be undue and oppressive due to the passage of time under s14 of the Extradition Act 2003. It is worth noting that this bar to surrender is not included in the Framework Decision. These cases suggest that the manner in which the Framework Decision has been transposed into domestic law, including the language used in drafting where the ‘surrender’ process of the EAW is still considered ‘extradition’ under the Act has not assisted the process of adapting to the new scheme. However, despite the purposive approach generally adopted by the courts in the United Kingdom, particularly in respect of the requirement to state the purpose of the warrant (as in Cando Armas, Parasiliti-Mollica and Hunt), the most significant failing of the EAW system considered by the UK courts has been the failure to comply with the procedural requirements of the Framework Decision.

121  122  123  124 

Ibid. para. 15. Palar v. Court of First Instance of Brussels, [2005] EWHC 915. Enander v. Governor of HM Prison Brixton [2005] EWHC 3036, [2006] 1 C.M.L.R. 37. Hunt v. Court of First Instance, Antwerp, [2006] EWHC 165, [2006] 2 All E.R. 735.

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7. Conclusions The initial phase of use of the EAW indicates that the new scheme for surrender in the EU is functioning effectively on a practical level. The United Kingdom House of Lords report that ‘NCIS [now The Serious Organised Crime Agency] feel that the system is working well and is not unduly burdensome’.125 Whilst the EAW has been fully implemented in all Member States, legal challenges under national law mean that Germany and Cyprus have been unable to surrender their own nationals until legislation is amended.126 Furthermore, the staggered implementation period of the EAW has brought some operational problems. For example, Eurojust report that in 2005, Latvian authorities requested the execution of an EAW by the Czech Republic. The Czech authorities were unable to execute the warrant in this case due to national legislation only providing for the surrender of persons for acts committed after 1 November 2004. However, the Latvian authorities were unable to submit a traditional extradition request under the European Convention on Extradition 1957 since the 1957 Convention had been rendered legally obsolete by the EAW. Eurojust was able to coordinate a request through diplomatic channels and the issue was successfully resolved.127 The passing of time will see these initial problems disappear, but they are a reminder of the need for the thorough and timely national implementation of measures scheduled under the Hague Programme. Whilst the anecdotal feedback of enforcement agencies has been positive about the operation of the EAW, cases such as Hussein Osman128 demonstrating the EAW functioning in an exemplary way and the European Commission reporting that contested warrants take an average of 43 days to execute,129 there are indications that a core of cases are taking longer than the time limits set under the EAW. The reasons for some of these delays remain unclear and it is to be hoped that there is no ‘creep’ in the number of these cases. The statistics for the use (successful and otherwise) of the EAW are the subject of some disparity.130 Further to their analysis of 2004, Eurojust express some doubt over the figures reported in their Annual Report of 2005, ‘Over 2,500 EAWs were issued in 2005. … we do not believe that in only 48 cases were the time limits for the process to return the fugitive exceeded. However, we are very disappointed that responses House of Lords, Report with Evidence, op. cit., p. 10. Eurojust, Annual Report 2005, op. cit., p. 16. 127  Eurojust, Annual Report 2005, op. cit., pp. 54–55. 128  See earlier discussion. 129  Report from the Commission, op. cit., p. 4. 130  For example compare the figures for delayed surrender published by Eurojust, Annual Report 2005, op. cit., pp. 33–34 and those supplied by the Council, Replies to questionnaire on quantitative information on the practical operation of the EAW – Year 2005, Brussels, 11.5.2006 9005/06 LIMITE, COPEN 52, EJN 12, Eurojust 21. 125  126 



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have been received from only seven Member States, rendering the value of any comparisons questionable.’131 On a strategic basis, the early phase of the implementation of the EAW can also said to have been a success. The excellent timescale for operational implementation by all Member States has been subsequently dented by the effect of the various legal challenges under national law, and the effect of the ECJ’s preliminary ruling in the Belgian Advocaten voor de wereld 132 case is awaited. The ECJ has already begun to make important contributions to the interpretation of EU law in the field of criminal cooperation with decisions such as Gozutok and Brugge133 and Pupino.134 The decision in Advocaten voor de wereld will have crucial significance both for the future of the EAW and for the delivery of the programme of mutual recognition measures planned under the Hague Programme.

Eurojust, Annual Report 2005, op. cit., p. 34. Reference for a Preliminary ruling of 13 July 2005 from the Arbitargehof (Belgium) in the proceedings between Advocaten voor de wereld, a non-profitmaking association, and the Council of Ministers, (Case C-303/05). op. cit. 133  Gozutok and Brugge Joined Cases C-187/01 & 385/01, [2003] ECR I-1345. 134  Pupino, loc. cit. 131  132 

DNA Analysis and Criminal Proceedings: The European Institutional Framework Elisabeth Symeonidou-Kastanidou Professor of Criminal Law, School of Law, Aristotle University of Thessaloniki, Greece

Council Decision 2008/615/JHA requires that Member States of the European Union open and keep national DNA analysis files for the investigation of criminal offences. The purpose of the present article is to discuss whether the European institutional framework with regard to the protection of personal data in the course of DNA analysis is adequate from a human rights perspective; in other words, whether such institutional framework properly delimits state action in accordance with the fundamental principles of lawfulness, necessity and proportionality.

1. Introduction For a number of years, the creation of DNA analysis files has been in widespread use by the police as a supervising mechanism over large groups of citizens. As of 2008, however, Council Decision 2008/615/JHA1 not only entitles but actually requires EU Member States to maintain national DNA analysis files for the investigation of criminal offences, as well as to allow other Member States to obtain access to the reference data in these files, thus enabling them to conduct automated searches by means of comparing DNA profiles.2 Although these measures admittedly constrict the right of self-determination over one’s personal information,3 they are considered justifiable in view of the OJ L 210, 6.8.2008, p. 1. Said Decision remained into force even after the adoption of Framework-Decision 2008/977/ JHA “on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters” (See item 39 of the Preamble of Framework-Decision, OJ L 350, 20.12.2008, p. 60). 3  DNA analysis allows, in particular, access to very sensitive information of every person reflecting his profile in relation not only to his past, but also to his present and his near future. It can reveal features such as sex, origin, characteristics of personality, diseases suffered, as well as predispositions for developing illnesses in the future. DNA analysis can also provide information 1  2 

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overarching social purpose of combating serious crime.4 That being noted, DNA analysis does present its own problems: on the one hand, the technical methods employed to date have been shown to be less than fully reliable;5 on the other, DNA samples are constantly diffused to the environment, no particular attention being paid by the individual concerned, which makes it easy for potential culprits to plant them in a crime scene, thus disorienting investigations and incriminating innocent persons.6 Despite such flaws, DNA analysis is regarded as one of the most effective methods to identify a person, and hence as an invaluable tool for law enforcement authorities. In point of fact, the durability of DNA – i.e. its ability to remain intact and trace a human being from the moment of birth to the moment of death- makes its analysis superior to that of, e.g., fingerprints, which are subject to impairment due to manual labour, medical intervention or certain forms of disease.7 This is precisely why the processing of DNA files for the purpose of investigating criminal offences has been recognized by the European Court of Human Rights as a permitted restriction of the right of self-determination over one’s personal information,8 on the obvious condition that the principles of lawfulness, necessity and proportionality are respected.

for other persons found in the same genetic line. Therefore, the DNA constitutes a particular sensitive personal data. See ECHR Case S. and Marper versus United Kingdom, Decision of 4.12.2008, paras. 70 et seq; as well as Opinion of European Data Protection Supervisor (OJ C 116, 17.5.2006, p. 8, item 56). See also in general S. Simitis, Datenschutz – Rücktritt oder Neubeginn?, NJW 1998, p. 2477; I. Iglezakis, Sensitive Personal Data, Sakkoulas Publications, Athens –Thessaloniki, 2004, pp. 17 and 100. The notion of sensitive personal data encompasses also the genetic print or genetic profile, which is the result of the analysis of the non-nuclear (or non codified) part of DNA, through which a person is identified on the grounds that the appropriate de-codification can reveal information relating to gender, sex, family affinity and origin of a person, while the progress of technology can permit in the future the extraction of further information. In relation to the character of genetic prints as personal data, and in particular of a sensitive nature, see Opinions of European Data Protection Supervisor (OJ C 116, 17.5.2006, p. 8, item 56, OJ C 169, 21.7.2008, p. 2, item 47, OJ C 276, 17.11.2009, p. 8, item 79). See also Opinion of the Hellenic Data Protection Authority 2/2009, as well as Opinion of the Greek National Commission for Human Rights, “The operation of video cameras in public places and the sound or image recording, the DNA analysis during criminal proceedings and the files of genetic prints (Article 12 Law 3783/2009)”, 2010, p. 8. 4  See relevant analysis by R. Keller, Gentechnische Untersuchungsmethoden im Strafverfahren, in: Simon (Hrsg.), Recht der Biotechnologie, Band III, p. 1 et seq. 5  See in relation to this issue Opinion of European Data Protection Supervisor, OJ C 89, 10.4.2008, p. 1, item 39. See also Ch. Georgiou, DNA test in criminal proceedings: factors of incredibility and limits of its use, Poiniki Dikaiosyni 2003, p. 679. 6  For this reason it is rightly withheld that the identity of suspects must already stem from other elements, proof or token of evidence (See Opinion of the Hellenic Data Protection Authority 15/2001, item 7). 7  See I. Pollatou, DNA Analysis and new horizons in crime investigation, Poiniki Dikaiosyni 2001, p. 1181; N. Tsoumani, Observations-Opinions, Poinika Chronika 2009, p. 283. 8  See ECHR, Case S. and Marper versus United Kingdom, Decision of 4.12.2008, paras. 104–105. Consistent is also the jurisprudence of Germany’s Constitutional Court (see indicatively BVerfGE 1741/1999, 14.12.2000).



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The purpose of the following analysis is to explore whether the European institutional framework after Council Decision 2008/615/JHA is adequate for the protection of human rights; in other words, whether such institutional framework properly delimits state action in accordance with the aforementioned fundamental principles.

2. The European Institutional Framework In adopting Decision 2008/615/JHA, the Council confined itself to mandating the creation of DNA files in order to combat criminal offences on the basis of common rules,9 refraining from the imposition of specific limitations on state authorities during the processing of files of genetic prints on their part.10 With regard to the level of data protection, however, the Council made a reference to the legislative framework created by the Council of Europe, and in particular to Convention 108 for the Protection of Individuals with regard to Automatic Processing of Personal Data of 28 January 1981, its Additional Protocol of 8 November 2001, and Recommendation Nr. R (87) 15 of 17 September 1987 of the Committee of Ministers of the Council of Europe to the Member States regulating the use of personal data in the police sector.11 This choice received criticism by the European Data Protection Supervisor, who emphasized, first of all, that the said Convention only contains general rules and, hence, can hardly contribute in the itemization of the desired protection, and secondly, that the Recommendation lacks binding force.12 Concerning this latter point, one can reasonably argue that the explicit reference of Council Decision 2008/615/JHA to Recommendation Nr. R (87) 15 has made it binding upon EU Member States, which are now prohibited from transferring data to another country, if the level of protection described in the Recommendation has not been previously guaranteed. The same can also be said of Recommendation Nr. R (92) 1, which specifically refers to the processing of DNA files during criminal proceedings; despite the fact that the Council stopped short of making a direct reference to this latter instrument, the European Court of Human Rights steadily alludes to it as a tool for interpreting the provisions of the European Convention on Human Rights, thus indirectly vesting it with

The rules for the formulation of the files were contained in Council Decision 2008/616/JHA. See also the relevant objections expressed by the European Data Protection Supervisor in relation to the means of introduction of Council’s Decision 2008/615/JHA (OJ C 169, 21.7.2007, p. 2, item. 13 et seq.). 11  See Article 25 of Council Decision 2008/615/JHA. 12  See Opinions of European Data Protection Supervisor, OJ C 169, 21.7.2007, p. 2, item 60 and OJ C 89, 10.4.2008, p. 1, item 14. 9 

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the binding character apposite to the case-law of the ECHR.13 What remains to be surveyed, then, is whether, presuming the binding character of both Recommendations, a sufficient level of data protection is attainable. On this question, the indications are hardly encouraging.

3. Main Problems of the European Institutional Framework 3.1. Criminal Offences for which DNA Analysis Is Permitted Starting from the conditions under which DNA analysis can be ordered, problems already arise in the description of criminal offences for which such analysis is permitted. Recommendation Nr. R (87) 15 does not contain any pertinent limitation, while Recommendation Nr. R (92) 1 merely states that recourse to DNA analysis is permissible in all “appropriate” cases, regardless of the gravity of the criminal offence.14 From this provision, one can infer that DNA analysis can be ordered for serious and non-serious criminal offences alike, while there is no clarification as to which are the “appropriate” cases justifying such analysis. Even upon careful reading of the Explanatory Memorandum to the aforementioned Recommendation, one is still left in the dark with respect to the full scope of the said provision, since in the above-mentioned document it is merely illustrated that the analysis should not be carried out in simple cases of shop-lifting (if at all possible) or in minor road traffic offences.15 Based on the above, one could hardly argue that English law, for example, violates the European legislation in permitting DNA analysis for all “recordable” criminal offences – which would practically encompass almost all crimes- save in any case for minor traffic offences.16 The same can be argued with regard to Greek law, in which, although at first DNA analysis was only permitted in the case of specific categories of serious criminal offences,17 as of 2009 such analysis is mandatory for all felonies, as well as all misdemeanours punishable with imprisonment of at least three months. According to this law, DNA analysis is

See with regard to the operational link between the European Convention on Human Rights and the European Court for the formulation of a common European acquis in the field of protection of personal freedoms, K. Chrysogonos, The integration of the European Convention on Human Rights in the national legal order, 2001, p. 175 et seq., the same, The European Convention on Human Rights, One Century After, in: “The impact and effects of the European Convention on Human Rights on the interpretation and application of Greek law”, published by the National School for Judges, Edited by G. Ktistakis, 2002, p. 51 et seq. 14  See Principle 5 of Recommendation Nr. R (92) 1. 15  See Explanatory Memorandum to Recommendation Nr. R (92) 1, para. 44. 16  See Police and Criminal Evidence Act 1984 (PACE), para. 63. 17  In particular, the crimes for which DNA analysis was permitted until 2009, on the basis of Law 2928/2001, were felonies performed with the use of violence, crimes against sexual freedom even at the level of misdemeanours, as well as acts of instituting and participating in crime organizations. 13 



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for instance permitted for all types of theft and other crimes of lesser gravity, but, in any event, it is not permitted in cases of petty theft. Nonetheless, the gravity of a criminal offence on account of which DNA analysis is ordered constitutes an essential element within the context of applying the principle of proportionality.18 The restriction of the right of self-determination over one’s personal data seems justifiable when the need arises to investigate a homicide or a lethal robbery; it is hardly justifiable, however, when it comes to investigating the offence of theft, even in its qualified form. According to a 2001 Opinion by the Hellenic Data Protection Authority,19 the principle of proportionality requires that every provision concerning DNA analysis in criminal proceedings “entails an exclusive list of all criminal offences for the investigation of which such analysis is permissible” and, in any event, such method “should be restricted to very serious criminal offences”.20 3.2. The Individuals upon which DNA Analysis Can Be Performed Problems also arise in relation to the circle of persons whose DNA is subject to analysis. The only limitation appears to emanate from Recommendation Nr. R (92) 1, which quite vaguely states that the analysis can be ordered for the identification of the “suspect” or “any other” person “within the framework of the investigation and prosecution of criminal offences”.21 It artlessly follows that DNA analysis is also permitted against individuals, who have found themselves in the site of the crime by chance (and hence cannot be classified as suspects), or even against third persons, who could somehow be related with the specific criminal offence. For example, it might suffice as a hypothesis that a crime suspect has a particular hair colour, so as to order a DNA analysis on the entire male population of a town or district having the same hair colour. It is worth noting at this point, that the Explanatory Memorandum to the aforementioned Recommendation makes an explicit reference to the performance of voluntary analysis on large groups of people, absent any limitation reflecting the standard of proportionality.22 The situation is, of course, different when DNA analysis is requested by the person accused for a certain crime in order to prove his innocence. In such a case, the gravity of the crime cannot affect the conduct of such analysis. 19  Opinion 15/2001, item 8. 20  Towards the same direction see also Opinion of the National Bioethics Commission in Decision on the use of genetic prints in criminal proceedings of 23.3.2001, para. 6, Opinion of the Hellenic Data Protection Authority 2/2009, item 2, Opinion of the Greek National Commission for Human Rights, “The operation of video cameras in public places and the sound or image recording, the DNA analysis during criminal proceedings and the files of genetic prints” (Article 12 Law 3783/2009), 2010, p. 14. 21  Principle 2 of Recommendation Nr. R (92) 1. 22  See Explanatory Memorandum to Recommendation Nr. R (92) 1, para. 38: “The law of most countries usually provides that samples may be collected from third parties with their consent. 18 

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Within this context, even the analysis that took place in Germany over DNA samples from 16,400 individuals23 – widely regarded as the most massive one to date – could hardly clash with the provisions of the Recommendation.24 It is of course argued that similar analyses are always conducted upon prior consent by the individuals concerned, thus causing no particular problems in actual practice. However, the genuine character of such consent should not be taken for granted without more, especially when the subject’s refusal to “cooperate” can render him/her a suspect.25 It becomes clear that the standards of lawfulness and proportionality to be applied on group analysis are largely defined by the safeguards under which consent can be obtained, the type and gravity of the offence in question, as well as the range of individuals tested. Therefore, these factors should be explicitly and unambiguously specified by the European legislator. 3.3. The Purpose for which DNA Analysis Can Be Ordered European legislation lacks a comprehensive enumeration of the purposes for which DNA analysis can be ordered. Recommendation Nr. R (92) 1 clearly states that its provisions cover the collection of samples and the use of DNA analysis “within the framework of the investigation and prosecution of criminal offences”.26 It stops short of specifying, however, whether such offences shall have been committed already. That given, statutory law in a number of states, such as Germany or the Netherlands, allows DNA analysis of individuals who are accused or have been condemned, even on the mere grounds of preventing potential criminal

Cases have occurred where this has taken place on a number of persons who were neither victims nor suspects, for instance the entire population of a village. If the national law allows such procedures, the recommendation will apply also to such cases”. 23  In this regard see D. Halbfinger, ‘Police Dragnets for DNA Tests Draw Criticism’, The New-York Times, January 4, 2003; J. Jüttner, ‘Der Fall Ronny Rieken’, Der Spiegel, 26.10.2007. 24  In relation to massive DNA analysis in Germany after the modification of the legislative framework that took place in 2005, see L. Senge, Die Neuregelung der forensischen DNA-Analyse, NJW 2005, p. 3028 et seq. See also the application of the provision in Ordinance 37Qs 4/07 LG Dortmund, which allowed the voluntary collection of DNA from 284 individuals, between whom the prospective perpetrator of a death inflicted to an infant baby could have been found (Poinika Chronika, p. 276). 25  As regard to the questions framed in relation to the voluntary granting of DNA samples in such cases, but also to the real value of such analysis in comparison to the scope and extent of the insult inflicted see H. Satzger, DNA-Massentests – kriminalistische Wunderwaffe oder ungesetzliche Ermittlungsmethode, JZ 2001, 639 et seq., E. Zadoc, ‘Legislative and Ethical Questions regarding DNA and Other Forensic “Biometric” Databases’, in: A. Kumar and D. Zhang (eds.), Ethics and Policy of Biometrics, Third International Conference on Ethics and Policy of Biometrics and International Data Sharing, Revised Selected Papers, Springer Verlag, 2010, p. 29. 26  Article 2 of Recommendation Nr. R (92) 1.



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offences.27 There is, of course, no consensus as regards the justification of such analysis. According to one view, it is to be treated as an “intruder” in the ordinary course of criminal procedure, since there is no relation with the crime that has been committed and for which legal proceedings have been instituted or a conviction has been imposed.28 On the other hand, the Federal Constitutional Court of Germany has ruled that even this form of DNA analysis constitutes an integral part of the criminal process, since it is performed for the purpose of investigating a potential criminal offence.29 An even broader perspective on the issue has been offered by the ECHR, ruling that this specific restriction of the right of self-determination over personal information is justifiable because it serves the legitimate cause of crime prevention, it protects fundamental freedoms, and is not particularly invasive in nature; moreover, the persons affected may also derive certain advantages from the inclusion of their DNA profiles in the national database in that they may thereby be rapidly eliminated from the list of suspects of crimes in the investigation of which material containing DNA has been found.30 Nevertheless, it is one thing to classify DNA analysis as a justified restriction of the right of self-determination over one’s personal information in the investigation of serious criminal offences, such as homicide, and a totally different task to attempt to align DNA analysis with the principles of necessity and proportionality when conducted for the mere purpose of investigating prospective crimes, based on a hypothesis that a given individual might become a culprit in the future. Such DNA analysis is far more invasive than the maintenance of a criminal record (which simply registers what has already happened) or even the taking of pictures and/or fingerprints of convicted persons.31 Such invasive character is obviously the reason why many states, including Greece, only permit DNA analysis to facilitate the investigation of specific criminal offences that have already been committed.32 It follows that the conditions under which DNA analysis can exceptionally be permitted for prospective crimes should

See para. 81g German StPO and Article 2 para. 1 of the Netherland’s DNA Testing (Convicted Persons) Act of 1.2.2005. 28  S. Pommer, Die DNA Analyse im Strafprozess – Problemfelder der §§ 81 e ff StPO, JA 2007, p. 62. 29  See BVerGE, 2 BvG 1741/1999, 14.12.2000, views 57–64. 30  ECHR, Case Van der Velden versus the Netherlands, Decision of 7.12.2006. 31  See towards this direction M. Smith, ‘Let’s make the DNA Identification Database as Inclusive as possible’, Journal of Law, Medicine and Ethics 2006, p. 385 et seq. 32  See also Opinion of the Hellenic Data Protection Authority 15/2001, item 5, where it is stated that “one can hardly speak or draw analogies, since genetic or DNA information is much more creditworthy, constant and rich in terms of informational context and leverage. In contrast to fingerprints, whose use is confined for the identification of a person, in the case of DNA analysis data can evolve that could render possible future and broad interventions into the personality and the life of an individual”. 27 

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be agreed upon by EU Member States, and should be clearly defined in the European legislative framework. 3.4. The Safeguards under which DNA Analysis May Be Ordered Similar problems arise regarding the guarantees governing the taking of samples for DNA analysis. Recommendation Nr. R (92) 1 provides that this should only be carried out under circumstances to be determined by domestic law.33 It does not, however, explicitly state that such recourse should be the ultimate means (ultimum refugium) when other less restrictive and burdensome measures are not available, nor does it provide that judicial guarantees must be granted. In fact, all it recognizes is that “in some states this might necessitate specific authorisation from a judicial authority”. Such wording paved the way so that decisions concerning DNA analysis in a number of European countries are now made absent any judicial guarantees whatsoever. English law provides, for example, that DNA analysis can be ordered immediately after the arrest of a person, on the mere basis of a decision issued by a police officer possessing the rank of an investigator; Greek law was amended in 2009 to contain a much broader provision, mandating DNA analysis when law enforcement authorities, including the police, conclude that there is serious evidence of guilt.34 Admittedly, however, such an invasive measure cannot be ordered “automatically” once a person is arrested as suspect of having committed crimes of lesser gravity, such as theft, nor be imposed by the police, who are thus requested to interpret and apply broad legal definitions, such as “serious evidence of guilt”, absent any judicial review.35 One would indeed expect that certain judicial safeguards are to be provided prior to the ordering of a DNA analysis. 3.5. The Method of Collecting Samples for the Purpose of DNA Analysis The legislative framework appears incomplete also in relation to the provisions regulating the collection of samples for the purpose of DNA analysis. Article 5 of Convention 108 of the Council of Europe provides in rather broad terms that all related information should be obtained through a decent and lawful

Principle 4 of Recommendation Nr. R (92) 1. On the basis of former Law (2928/2001) DNA analysis was not obligatory and could be ordered only by the competent court council, when there was serious evidence of guilt. Such wording allowed the assumption that the court council would order the analysis only when it was deemed to be necessary. 35  See towards the same direction the Opinions of the Hellenic Data Protection Authority 15/2001 and 2/2009, item 7. See also respectively L. Kotsali, DNA Bank, security and human rights, Nomiko Vima 2009, p. 1882. 33  34 



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manner, while Recommendation Nr. R (92) 136 simply adds that in cases where domestic law allows samples to be taken without the suspect’s consent, such sampling should only be carried out if the circumstances of the case warrant it.37 Based on such wording, one arrives at the conclusion that the collection of samples can take place even without the consent of the person concerned, without however specifying whether coercive means can be employed against the subject or whether the authorities should confine themselves to collecting DNA samples diffused in the subject’s environment. The Explanatory Memorandum of the Recommendation explicitly states that this is a matter to be decided independently by every state on the basis of the proportionality principle,38 whose contours however are left undefined in the said document. As a result, every state delimits the standard of proportionality in a completely different way. In England, although initially it was provided that the collection of samples for the purpose of DNA analysis presupposed the consent of the individual concerned,39 subsequently a distinction was adopted concerning “intimate” biological material, such as sperm and blood, whose collection requires consent, and “non-intimate” biological material, such as saliva or hair, which can be collected by the police without prior consent.40 In most countries of continental Europe, however, it is accepted that even blood or sperm can be received without the prior consent of the individual, when such analysis is important for the criminal proceedings initiated and a pertinent judicial decision has been issued. Dissenting opinions, however, have been voiced, such as the one by the National Bioethics Commission in Greece, arguing that the violent removal of material from the human body for the purposes of DNA analysis insults human dignity in any case, and can therefore not be sustained.41 Principle 4 of Recommendation Nr. R (92) 1. For the reasons that led the drafters of the Recommendation to choose this wording see K. Spinellis, The Recommendation Nr. R (92) 1 for the use of DNA analysis within the system of criminal justice – Uses without abuses, Poinika Chronika 2001, p. 287. 38  Explanatory Memorandum to Recommendation Nr. R (92) 1, para. 43. 39  See Nuffield Council on Biometrics, The forensic use of bioinformation: ethical issues, 2007, para. 4.9. 40  See accordingly E. Poularaki, Remarks on ECHR Case S. and Marper versus United Kingdom, Poiniki Dikaiosyni 2009, p. 1247. 41  See Decision of the National Bioethics Commission of 23.3.2001, item. 5. See also E. Malliou, The use of DNA in the criminal hearing, Nomiko Vima 2001, p. 1760, I. Manoledakis, Security and Freedom, Sakkoulas Publications, Athens –Thessaloniki, 2002, p. 157; E. Papaioannou, The acquiescence given by a person to the analysis of its DNA and the new provision of Article 200A of the Criminal Procedure Code, Poiniki Dikaiosyni 2001, p. 1176; E. Symeonidou-Kastanidou, Law 2928/2001 on “the protection of the citizen from illicit acts and offences by criminal organizations” – Basic features and a first interpretative approach, Poiniki Dikaiosyni 2001, p. 697. Said opinion was also endorsed by the acting at that time Minister of Justice during the discussion of the relevant draft law in the Parliament who stressed that: “The draft law provides for the mandatory retrieval of DNA, but not for its enforcement. It is something different, if violence is exercised upon the human body. Such action encroaches upon the relevant paragraph of Article 5 of the Constitution” 36  37 

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A description of the standard of proportionality on a European level is therefore of paramount importance. It is obvious that the use of coercive means cannot be dealt with in the same way in the investigation of a homicide as opposed to a theft or a forgery. In addressing the issue, the ECHR has ruled that the European Convention on Human Rights does not preclude the retrieval from the human body of material, which can exist independent of the individual’s will such as, inter alia, breath, blood and urine samples and bodily tissue for the purpose of DNA testing.42 The Court has also accepted that Articles 3 and 8 of the Convention on Human Rights do not rule out even the use of coercion for the extraction of such material, when this is necessary in order to gather and ensure evidence for the participation of a person in a criminal offence. As the Court has emphasized, such action must be justified by the seriousness of the offence in issue, by the fact that less burdensome measures are not available, that such action does not entail any risk of lasting detriment to the individual’s health and, finally, that such action does not amount to an inhuman or humiliating treatment, as in cases where the person concerned experiences serious physical pain or suffering as a result of forcible intervention.43 Thus, the European Court of Human Rights has formulated and proposed, in principle, an interpretative framework with regard to the preconditions that justify the use of coercion for the extraction of material from the human body, which could be further developed by the European legislator in delimiting state action in this field. (See Minutes of the Greek Parliament, 5.6.2001, p. 9064). See, however, differing views in N. Paterakis, Remarks on the decision of the Court of First Instance of Mannheim 104/2000, Poiniki Dikaiosyni 2001, p. 1152; G. Siaperas, The acquiescence of a person to the retrieval and analysis of his/her DNA, Poiniki Dikaiosyni 2005, p. 1451 et seq. In favour of the possibility of retrieving samples even despite the contrary will of the person concerned see also the Ordinance of the Magistrates’ Council of Thessaloniki 69/02, Poiniki Dikaiosyni 2001, p. 274 that espouses the view that the use of violence in such cases does insult the human dignity, it is justified however for purposes of investigating serious crimes. Certainly, such an interpretation cannot be upheld. Human dignity is protected and guaranteed both in Article 3 of the European Convention on Human Rights and Article 2 of the Greek Constitution in an absolute way and thus any potential derogation from its protection cannot not be sustained for any reason whatsoever (See indicatively ECHR, Cases Assenov and others versus Bulgaria, Decision of 28.10.1998, para. 93, Aktas versus Turkey, Decision of 24.4.2003, para. 310, Zelilof versus Greece, Decision of 24.5.2007, para. 42). Therefore, it is either held that the violent retrieval of cellular material alone does not constitute in any event an infringement upon human dignity, or if it is regarded that human dignity is violated, said violent collection of samples cannot be sustained and thus justified. (With regard to the discussion relating to the potential violation of human dignity through DNA tests see Th. Petermann, ‘Human Dignity and Genetic Tests’ in: K. Bayertz (ed.), Sanctity of Life and Human Dignity, Kluwer Academic Publishers, the Netherlands, 1996, p. 123 et seq.). 42  See ECHR, Cases Saunders versus United Kingdom, Decision of 17.12.1996, para. 69, Shannon versus United Kingdom, Decision of 4.1.2006, para. 36. 43  See ECHR, Case Jalloh versus Germany, Decision of 11.7.2006, paras. 70–72 and 112–114. See also I. Kriaris-Katranis, Genetic technology and human rights. The constitutional protection of genetic data, A. Sakkoulas Publications, Athens –Komotini, 1999, p. 125 et seq.; O. Tsolka, The principle «Nemo tenetur se ipsum prodere / accusare” in criminal justice, A. Sakkoulas Publications, Athens – Komotini, 2002, p. 201 et seq.



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3.6. DNA Analysis Files Crucial problems also arise in relation to the conditions under which retrieved DNA samples can be maintained or files of genetic prints can be created, despite the fact that the volume of such files alone would indeed suffice as justification for the promulgation of specific legislation. It is worth noting, for example, that in England alone the police archives of genetic prints contained more than three million records in 2007,44 which rose to five million listings by the end of 2009.45 3.6.1. DNA files of Persons Acquitted One issue that remains unclear at this level relates to the possibility of preserving samples and DNA profiles of persons that have been acquitted or against whom no criminal proceedings have been instituted after a previous charge or arrest was made. Recommendation Nr. R (87) 15 vaguely states that the recording and storage of data must be confined to elements that are concrete and necessary in order for the police to attain its lawful purposes, adding that such data must be destroyed when it is no longer necessary for the causes due to which it was put in storage.46 Pertinent provisions are also found in Recommendation Nr. R (92) 147 regarding the maintenance of samples and DNA profiles. The said Recommendation provides in principle that samples or other bodily tissues taken from individuals for DNA analysis should not be retained after the final decision has been rendered in the case for which they were used. It introduces an exception, however, in cases where such retention is necessary for purposes directly linked to those for which the samples were initially collected. There is also a general rule providing that genetic prints are to be destroyed, only if it is no longer necessary for them to be preserved for the purposes for which they were initially collected. It follows that both Recommendations fail to clarify whether personal data of persons acquitted can be retained. On the other hand, the Explanatory Memorandum to Recommendation Nr. (92) 1 attempts to specify when it is no longer necessary to retain such data by underlining that, to the extent that the primary purpose of DNA analysis is the identification of culprits, such data must be destroyed when the individual

44  See the relevant reference to the Opinion of the European Data Protection Supervisor (OJ C 169, 21.7.2008, p. 9, item 50). See, however, also H. Whittall, DNA profiling: Invaluable police tool or Infringement of Civil Liberties?, Bioethics Forum 2007 (), where it refers to the existence of more than 4.5 million of records covering almost 6.5% of the population. 45  See reference to BBC – News of 24.11.2009. 46  See Articles 3 and 7 of Recommendation Nr. R (87) 15. 47  Article 8 of Recommendation Nr. R (92) 1.

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is relieved of suspicion in relation to the commission of a crime.48 Regrettably, there is no direct reference to the lack of initiation of criminal proceedings or the acquittal of the defendant. Indeed, it can be the case that the police maintain suspicion regarding the possible implication of a person in a criminal offence despite the fact that no charges were pressed due to lack of probable cause or in the face of an acquittal absent affirmation of guilt beyond reasonable doubt. Thus, both Recommendations essentially pose only one limitation with regard to the retention of samples and DNA profiles of persons who have been acquitted or against whom no prosecution was ever instituted, providing that their data should not be maintained indiscriminately and indefinitely. This view has also been endorsed by the ECHR, which in December 2008 ruled against England,49 because it permitted the indefinite retention of both genetic material and DNA profiles of individuals arrested even for minor offences, absent any judicial guarantees.50 Greek law, and specifically Statute Nr. 3783/2009, also fails to comply with the European institutional framework, since it permits the unexceptional retention of DNA profiles of all persons who were considered at some point to be suspects until their death, on the condition that DNA analysis has led to their positive identification, even if no charges are pressed against them or even if they are ultimately acquitted. It is worth noting that the said provision was introduced into Greek legislation only a few months after the ECHR’s decision against England on account of a virtually identical statute.51 On the other hand, however, European legislation does not preclude the retention, on certain conditions, of samples or DNA profiles collected even from persons that have not been convicted. Accordingly, the ECHR ruled that the Scottish legislation is fully in line with Recommendation Nr. R (92) 1, whereas the former allows the retention of DNA samples and profiles of non-convicted persons only in the case of adults charged with violent or sexual offences and even then, for three years only, with the possibility of an extension to keep the

See Explanatory Memorandum to the Recommendation Nr. R (92) 1, para. 49. ECHR, Case S. and Marper versus United Kingdom, Decision of 4.12.2008, paras. 45 et seq. and 119 et seq., ruling that the general and without exceptions storage of samples and genetic prints of persons that have not been convicted does not guarantee a fair balance between the clashing public and private interests and for this reason constitutes a disproportionate intervention to the right of respect of a person’s private life that cannot be sustained and tolerated in a democratic society. 50  See the relevant provisions in the Criminal Justice Act of 2003. See also criticism in relation to the consequences of said provisions in C. McCartney, Forensic DNA Sampling and the England and Wales National DNA Database: A Sceptical Approach, Critical Criminology 2004, p. 157 et seq. 51  See critic on the choice made by the Greek legislator in the Opinion of the Hellenic Data Protection Authority 2/2009, item 3, where a reference is made to the principle of proportionality and there is a requirement that the maintenance of files could be possible only when there is a convicting decision issued. See also to this regard S. Aggelis, The Filing of Genetic Prints for the Investigation of Crimes in Accordance to Article 12 para. 3 of Law 3783/2009, Poinika Chronika 2009, p. 947. 48  49 



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DNA sample and data for a further two years with the consent of a sheriff.52 The European Court has also ruled that the legislation of other European countries, including Germany and Denmark, are in compliance with the said Recommendation, notwithstanding fundamental differences between them, on the condition that they impose certain limitations over the retention of personal data. It is quite dubious, however, whether an innocent person may be subject to discrimination on the grounds that the police consider him/her a “suspect”, especially in cases where there has been an acquittal by a court.53 As observed by the Hellenic Data Protection Authority, the presumption of innocence in similar cases is seriously “curtailed”.54 Certainly, one can think of certain exceptions, like e.g. cases where the acquittal is based on an insanity plea; nevertheless, these exceptions should be clearly described in the European legislative framework. 3.6.2. DNA Files of Persons Who Consent to the Retention of their Genetic Data Similar problems also arise with regard to the provisions concerning the retention of samples and DNA profiles, which come as a result of analysis conducted with the prior consent of the individual concerned. In such cases, of course, prior consent is given in relation to the analysis and not the retention of genetic data. If said consent, however, is interpreted so as to also cover samples and DNA profiles retention, then, according to Recommendation Nr. R (92) 1, the retention of pertinent data is indeed deemed to be permissible in any case and for a longer period of time.55 There is no limitation relating to the conditions under which such consent is granted and there is also no requirement that the person concerned be directly linked with a certain criminal offence. In such a way, however, the degree of protection of individual freedom achieved is utterly insufficient. It is worth noting that in England, where prior consent of individuals for massive DNA analysis is divided to “limited”, allowing DNA analysis and its further use only for a specific case, and “unlimited”, permitting the police to save the samples and register DNA profiles to the archive of DNA data for the investigation of other criminal offences,56 40% of the consents granted ECHR, Case S. and Marper versus United Kingdom, Decision of 4.12.2008, paras. 109–110. It is worth noting that some European states, like Belgium, Ireland, Italy, Hungary and Sweden, already require the ex-officio erasure of such data upon the innocence of a person or the lack of prosecution against him/her (see relevant quotations in ECHR, Case S. and Marper versus United Kingdom, Decision of 4.12.2008, para. 47). 54  See Opinion of the Hellenic Data Protection Authority 2/2009, item 4. The same approach was followed also by the Greek National Commission for Human Rights, which in its decision of 18.2.2010 made a proposition in favour of a direct erasure of genetic prints immediately after an irreversible decision upon a person’s innocence is issued. 55  Article 8 of Recommendation Nr. R (92) 1. 56  See D. Kaye and M. Smith, ‘DNA Databases for Law Enforcement: The Coverage Question and the Case for a Population-Wide Database’, in: D. Lazer (ed.), DNA and the Criminal Justice System: The Technology of Justice, MIT Press, Cambridge, 2004, p. 247 et seq. 52 

53 

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are reported as “unlimited”, thus raising doubts in relation to the credibility of the process under which said consent is obtained.57 An adequate level of protection would require the formulation of specific rules governing the terms of obtaining the consent of individuals, guaranteeing the transparency of this process, as well as ensuring respect for the principles of necessity and proportionality in each particular case. 3.6.3. DNA Files of Convicted Persons Problems also arise in relation to the conditions of retention of samples and DNA profiles of persons who have been condemned for a given criminal offence. Recommendation Nr. R (92) 1 states that the results of DNA analysis as well as the information so derived may be retained when the individual concerned has been convicted of serious offences against the life, integrity or security of persons.58 One problem that arises with respect to this provision concerns the definition of the notion of “security”. A broad interpretation of such term could encompass virtually all criminal offences, thus allowing the retention of data in a vast number of cases, as already provided in many European countries. The fundamental rationale underlying the retention of data in such cases lies in the fact that many times even perpetrators of a simple theft can easily transform themselves into offenders of very serious crimes. For this reason, their registration in a DNA database can assist in the investigation of rapes or homicides in the future.59 Nevertheless, the retention of data on the basis of a mere hypothesis of a prospective relapse into crime, which in cases of lesser offences constitutes an admission of failure of a state’s correctional system, cannot easily be brought to line with the principles of necessity and proportionality. On the other hand, even if the case involves a crime against a person’s life or bodily integrity, such gravity does not seem fit to justify the retention of DNA data, especially when there is no valid basis to assume relapse in the future. Assuming, for example, a senior lady kills her abusive husband, thus committing the only serious crime in her life, the retention of her DNA samples or profile can hardly be justified. The same applies in the case where the perpetrator is now disabled, and thus incapable of committing any criminal offence. Besides, another issue that has arisen in practice is whether the retention of genetic prints is justified in cases where the court has granted probation, particularly since probation relates 57  See relevant Report by the Nuffield Council on Biometrics (The Forensic use of Bioinformation: Ethical Issues, London, 2007). 58  Principle 8 of Recommendation Nr. R (92) 1. 59  See analysis of said view in E. Zadoc, ‘Legislative and Ethical Questions regarding DNA and Other Forensic “Biometric” Databases’ in: A. Kumar and D. Zhang (eds.), Ethics and Policy of Biometrics, Third International Conference on Ethics and Policy of Biometrics and International Data Sharing, Revised Selected Papers, Springer Verlag, 2010, p. 28.



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by its very nature to a prognostication that the convicted person is unlikely to commit criminal offences in the future.60 A number of states, such as Germany or the Netherlands, have incorporated judicial guarantees and limitations regarding the retention of samples and genetic prints, which nonetheless are not always accompanied by the requisite clarity. Similar provisions should have already been adopted on a European level, also binding those states which have failed to introduce limitations of their own, such as Greece. The legislative framework is also inadequate in relation to the purposes for which DNA files can be utilized. The ECHR has ruled that the general reference on crime prevention as found in English law could lead to abuse,61 and yet it did not preclude the possibility of using such files for proactive purposes, if a more cautious wording could be adopted.62 Besides, Recommendation Nr. R (87) 15 explicitly refers to the possibility of collecting personal data by the police, not only for the repression of a particular crime, but also for the prevention of a “real” danger. Decision 2008/615/JHA states, of course, that the transmission of genetic prints in other countries can only be justified for the investigation of criminal offences and not for reasons of crime-prevention, contrary to what is provided with respect to fingerprinting.63 Nevertheless, such limitation only concerns the trans-boundary flow of data, not its use by each Member State. Therefore, the legislation of the Netherlands, for example, cannot be said to conflict with the European institutional framework, despite the fact that it mandates the retention of DNA profiles not only for the detection, prosecution and trial of criminal offences, but also for purely precautionary reasons.64 Even if one were to accept that DNA files can only be used for the investigation and not for the prevention of crime, the types of crime investigated also remain undefined. Thus, one could reach the assumption that DNA files may be used even for the investigation of unimportant crimes, such as misdemeanours, which is already the case under Greek law.65 It is obvious, however, that since

60  See also relevant decision by the Federal Constitutional Court of Germany (BVerGE 1841/2000 of 15.3.2001). 61  See ECHR, Case S. and Marper versus United Kingdom, Decision of 4.12.2008, paras. 98–99. 62  See ECHR, Case Van der Velden versus the Netherlands, Decision of 7.12.2006. 63  See Articles 3 and 9 of Council Decision 2008/615/JHA respectively. 64  See Article 2 DNA section 5 of the DNA Testing (Convicted Persons) Act of 1.2.2005. 65  Greek law, in particular, provided initially that DNA files could be used only for the investigation of offences for which the retrieval of genetic material was permitted. Nevertheless, after the modification made by Law 3783/2009, it is thereafter provided that said data could be used for the investigation of all crimes, including also small malfeasances, possibility that certainly creates reasonable doubts in relation to the respect of the principle of proportionality (see the relevant Opinion of the Hellenic Data Protection Authority 2/2009, item 3, stressing that DNA data should only be used for the investigation of crimes for which retrieval of genetic material is permitted). Moreover, it is worth noting that in Germany, based on estimates made by the Ministry of Interior, from a total of 54.865 crimes investigated with the use of DNA files by the

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the creation of DNA files is permitted for crimes of a certain gravity, their use should also be confined to the investigation of crimes of a relevant importance.66 Uncertainty also exists in relation to the time-period of retention of genetic prints in such files. Recommendation Nr. R (92) 1 states that, in the cases of files of genetic prints created for convicted persons, the law should define strict storage periods.67 Nonetheless, no duration is specified even in general terms, allowing each state to apply utterly different standards. In Greece, for example, it is provided that the genetic prints of convicted persons are retained until their death, even for the crime of a simple theft. In Germany, such data is removed from the police archives after a ten-year period, when the convicted person is an adult, also depending on the gravity of each crime.68 In the Netherlands, it is provided that both samples and genetic prints can be maintained for 30 years, when the crime is of a certain gravity, and for 20 years, when the crime is of lesser gravity respectively,69 a time-period that has been regarded by the ECHR as a justified limitation to the right of self-determination over one’s personal data.70 Evidently, the standard of proportionality cannot vary to such an extent in each Member State of the European Union. Finally, the institutional framework is inadequate in relation to the maintenance of samples and genetic prints of minors. Neither Recommendation contains a specific provision covering minors. In addition, the ECHR has ruled that the lack of special clauses governing the retention of genetic data of minors in the Netherlands does not violate the principle of proportionality, taking into account that the interference upon the minors’ right of self-determination is relatively slight, and that domestic law contains appropriate safeguards against blanket and indiscriminate retention of DNA records.71 On this subject, there are of course different views relating to the observance of the standard of proportionality. According to the Greek National Commission for Human Rights, the retention of genetic prints does not constitute at all a “relatively slight” restriction of the right of self-determination over one’s personal data.72 In one of its opinions, the Commission underlines that “the inability – and not just the difficulty − of predicting the consequences of a negligent or intended use of genetic prints does police from 1998 to 2009, a percentage of 88.5% of such crimes concerned thefts (). 66  See as well the Opinion of the Hellenic Data Protection Authority 2/2009, item 3. 67  Principle 8 of Recommendation Nr. R (92) 1. 68  See § 34, item 3 BKAG. See also J.P. Graf, Strafprozessordnung, Kommentar, C.H. Beck Verlag, München, 2010, § 81g. 21. 69  See DNA Testing (Convicted Persons) Act and DNA (Criminal Cases) Tests Decree. 70  See ECHR, Case W. versus the Netherlands, Decision of 20.1.2009. 71  Ibid. 72  See National Commission for Human Rights, The operation of video cameras in public places and the sound or image recording, the DNA analysis during criminal proceedings and the files of genetic prints (Article 12 Law 3783/2009), 2010, p. 13.



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not allow any deviation or derogation from the obligation of full compliance with the principle of proportionality, namely the requirement that the limitations imposed are appropriate and absolutely necessary, and also maintain a plausible relation in terms of intensity, scope and duration with respect to the intended purpose”.73 Besides, the European Data Protection Supervisor has recognized that “the use of DNA information can reveal sensitive information about individuals, also taking into account that the technical possibilities of extracting information from DNA are still growing”.74 On the other hand, the UN Convention on the protection of children’s rights explicitly provides the obligation incumbent upon a state to take into consideration the age of a person at the level of criminal justice, as well as the need of every person for reintegration and assumption of a constructive role within the society.75 In compliance with the said Convention, many states, like for example Germany, provide for a narrower period of retention of the data of minors in the Police’s files.76 In Greece, although the current legislation has not incorporated any favourable distinction, the Data Protection Authority has required that the genetic prints of minors up to 13 years of age not be maintained; as regards minors of over 13 years that have been convicted for a crime, the Authority has ruled that their genetic prints should be maintained for a time period smaller than that provided for adults.77 Thus, a uniform European approach is also called for in relation to the conditions under which samples and genetic prints retrieved by the police should be retained, the time period of such data retention based on the gravity of the offences, as well as the possibility of involvement of the convicted in future criminal offences. 3.6.4. The Process of Informing the Person Concerned The flaws inherent in the European legislative framework are not confined to the vagueness of its provisions. Problems also arise out of deviations from fundamental principles of the law on data protection, as adopted by the Council in its Decision 2008/615/JHA. One derogation concerns the information provided to the person regarding the analysis of his/her DNA and the retention of the respective genetic print. 73  Towards the same approach see also I. Manoledakis, Security and Freedom, Sakkoulas Publications, Athens – Thessaloniki, 2002, p. 156, E. Symeonidou-Kastanidou, Law 2928/2001 on “The Protection of Citizens from Illicit Acts and Offences by Criminal Organizations” – Basic Features and a First Interpretative Approach, Poiniki Dikaiosyni 2001, p. 698. 74  See OJ C 276, 17.11.2009, p. 8, item 79. 75  See Article 40 of the UN Convention on the child’s rights. 76  See § 34, item 3 BKAG, where the time-period for maintenance of DNA files of adults is set initially up to ten years, for adolescents said period is limited to five years and for children is set to two years. 77  See Opinion 2 /2009 of the Hellenic Data Protection Authority, item 4.

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Convention 108 of the Council of Europe explicitly stipulates that every person must be able to obtain knowledge on the existence of files composed by his/ her personal data, except in such circumstances where the concealment of such data is deemed absolutely necessary for the protection of state security, public security, monetary interests of state and the repression of criminal offences.78 In line with the requirements of the Convention, Recommendation Nr. R (87) 15 clearly states that in cases where data concerning individuals have been collected and stored without their knowledge, and unless the data are deleted, they should be informed, where practicable, that information is held about them as soon as the object of the police activities is no longer likely to be prejudiced.79 An explicit reference to the aforementioned provisions is also made by Recommendation Nr. R (92) 1, which provides in particular for DNA analysis within the context of criminal procedure.80 Taking into account all these provisions, one could arrive at the conclusion that a uniform European principle has been established, requiring the police to inform the persons of the collection of their DNA samples and the retention of their genetic prints, when such disclosure can no longer jeopardize its investigations. The aforementioned principle seems, however, to be put into question within the framework of the European Union. Although Decision 2008/615/JHA of the Council largely confined itself to citing documents issued by the Council of Europe in relation to most issues pertaining to the level of data protection, as far as the provision of information is concerned it adopted a specific clause allowing disclosure upon submission of a pertinent application under national legislation.81 In this way, however, the right of information enjoyed by each person is highly disregarded. Indeed, the European Data Protection Supervisor has pointed out that citizens in many cases are not even aware of the fact that their DNA is being processed, and hence are not in a position to apply for the pertinent information.82 3.6.5. The Supervision of DNA files Council Decision 2008/615/JHA seems to also introduce a deviation in relation to the competent authorities for the protection of DNA files. The Decision states, in particular, that “responsibility for legal checks on the supply or receipt of personal data lies with the independent data protection authorities or, as appropriate, the judicial authorities of the respective Member States”.83 This wording, despite the 78  79  80  81  82  83 

Articles 8 para. 1 and 9 para. 2 of Convention 108 (1981). See principle 2.2 of Recommendation Nr. R (87) 15. See principle 7 of Recommendation Nr. R (92) 1. Article 31 para. 1 of Decision 2008/615/JHA. See Opinion of the European Data Protection Supervisor, OJ C 169, 21.7.2007, p. 2, item 75. Article 30 para. 5 of Decision 2008/615/JHA.



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different interpretative efforts being made,84 has led to the assumption that even the judicial authorities alone can be responsible for such supervision. Adopting such an interpretation, the Greek legislator removed the files of genetic prints retained by the police from the supervision of the Independent Data Protection Authority and assigned their overview to a prosecutor or a deputy-prosecutor of the court of second instance appointed by the Supreme Judicial Council for a term of two years. The protection of personal data is thus significantly diminished. According to the Greek Constitution, prosecutors do possess, of course, independence against the executive branch of the government,85 nevertheless, they lack the necessary know-how and the appropriate support which would enable them to exert effective control on the work conducted by the police.86 For this reason, not only older documents of the Council of Europe or the European Union, but also Article 16 of the Lisbon Treaty, as well as Article 8 of the Charter of Fundamental Rights of the European Union, explicitly refer to the need of “control” to be exercised by an independent authority.

4. Conclusions The conclusion arrived at through the above observations is that until today the European Union, albeit imposing upon its Member States the obligation to create files of genetic prints during criminal proceedings, has not secured a sufficient and uniform level of protection of the right of self-determination over one’s personal data. In some countries, DNA analysis is only permitted for very serious crimes, while in a few countries such analysis is permitted for almost all criminal offences. In some countries the retrieval of samples is permitted even by coercive means upon a decision issued by the police, whereas in other countries such practice is considered to violate the standard of proportionality or even to insult human dignity. There are countries that allow voluntary massive DNA analysis without the provision of any particular judicial guarantee; other countries require a prior judicial decision, while there are a few countries which even prohibit massive DNA analysis. Many countries choose to maintain samples and genetic prints of persons not being convicted or against whom no prosecution has been instituted, while other countries require a prior conviction. In some countries the processing of DNA files is allowed even for precautionary 84  See Opinion of the Hellenic Data Protection Authority 2/2009, item 8. See also Opinion of the National Commission for Human Rights, The operation of video cameras in public places and the sound or image recording, the DNA analysis during criminal proceedings and the files of genetic prints (Article 12 Law 3783/2009), 2010, p. 18. 85  See S. Aggelis, The Filing of Genetic Prints for the Investigation of Crimes in Accordance to Article 12 para. 3 of Law 3783/2009, Poinika Chronika 2009, p. 947. 86  See Opinion of the Hellenic Data Protection Authority 2/2009, item 8.

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reasons, while in others archives may be kept only for the investigation of crimes, with variations as to the types of crime permitting retention of data or the time-period of such retention. If, however, the European Union can obligate Member States to collect and retain samples and DNA profiles during criminal proceedings, it should also be able to guarantee that all persons living in the European Union can count on a certain minimum harmonized level of protection of their personal data, regardless of the place where they live. On the other hand, discrepancies in the level of data protection do not only infringe on the fundamental freedom of individuals. They also bear an effect on the processing of personal data within the context of cooperation between states. The possibility of access to other countries’ files facilitates the combating of crime when there is an essential approximation of basic data and, in particular, on the types of crime for which retention of data is permitted as well as on the characteristics of persons whose data is recorded. Moreover, such convergence also constitutes a necessary prerequisite for the observance of the principle of mutuality, which is certainly violated when a state provides for the retention of more thorough files of genetic prints in comparison to another state, thus contributing in the repression of crime to a different extent. Serious legal problems also arise from the use of files of genetic prints of other countries, where different rules exist as to the collection and retention of such data. This is because each distinct choice made with respect to the level of protection of such data reflects the position of every legislator as to the content of the principles of legality, necessity and proportionality that need to be respected. For instance, when a state disallows the retention of samples and genetic prints of persons that are not convicted, it obviously considers that such retention encroaches on the aforementioned principles and is therefore illegal. If that is the case, however, the use of data of other countries in relation to genetic prints of persons that have been acquitted or against whom no prosecution has been initiated may not be upheld. The same applies with regard to the preservation of genetic files of minors. When one country considers that the retention of genetic data of minors infringes on the principle of proportionality, it cannot at the same time use and process the files that contain such data. There arises, then, a need to develop a coherent legislative framework on the European Union level on DNA sample analysis and retention of DNA profiles during criminal proceedings. Such legislative framework, without deviating from the one developed by the Council of Europe, should specify limitations to be imposed upon state action in a manner guaranteeing the right of selfdetermination. Accordingly, such right shall only be limited inasmuch as this is absolutely necessary to achieve a superseding and paramount social purpose, a necessary prerequisite in a democratic society.



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The European Union should form a comprehensive position on all fundamental questions stemming from the legislative practices of its Member States, by means of limiting the use of DNA analysis to certain types of extremely serious crimes that should be specified in the law, defining the scope and judicial guarantees required to have recourse to mass screening of large groups of people, describing the methods and conditions of collecting samples when the subject declines consent, safeguarding that every person is adequately informed about the collection and retention of his/her samples and DNA profiles, and clearly describing both the conditions under which samples and genetic prints of persons not prosecuted or acquitted can exceptionally be retained, and the terms under which such data of convicted persons can be maintained during a specific timeframe, under the control of independent authorities, that possess the real capacity of overviewing action taken by the police. The promulgation of such legislation now constitutes an established obligation of the European Union on the basis of Article 16 of the Lisbon Treaty,87 as well as Article 8 of the Charter of Fundamental Rights of the European Union, and constitutes a task of high importance, considering that police and judicial cooperation for combating crime is constantly strengthening in the European Union.88

87  See on the importance of Article 16 of the Lisbon Treaty in relation to the protection of personal data A. Scirocco, ‘The Lisbon Treaty and the Protection of Personal Data in the European Union’, Data protection review.eu, Issue 5, February 2008, online at: . 88  See P. Schaar, ‘Regulatory Issues and European approach as regards the protection of personal information against the need for fighting crime and terrorism’ in: A.B. Sideridis (ed.), Next Generation Society – Technological and Legal Issues, 3rd International Conference on e-Democracy, 23–25.9.2009, Hellenic Scientific Council for the Information Society, 2010, p. 33.