“Investing in confidence – a vision of police and judicial cooperation in the EU”
Thank you Alberto.
Ladies and gentlemen,
First of all let me thank you all for coming to this meeting. It is a great pleasure to see so many of my Justice and Home Affairs Council colleagues among the audience. And I am very happy to be in the company of two eminent speakers, Alberto Costa, the President of our Council, and Vice President Franco Frattini.
Why did we take the initiative for this gathering?
As some of you may know, and a few even recall, I had the privilege to be present at the very first meeting of the Third Pillar Council in 1993. Now, I am looking forward to participating in the last ministerial Third Pillar meeting, hopefully in 2008. Coming back to the JHA Council I was impressed with the progress made over the past decades. Now that I have been back for a year, since September 2006, I also see clearly that further action and cooperation is possible and indeed necessary. So in the first place, I would like to share some of these ideas with you.
In the second place, I would like to bring across the message that, after the period of reflection following the referendum in 2005, and on the basis of the Lisbon Treaty, the Netherlandsis committed to fully participate in the construction of Europe. This is all the more evident in the field of criminal justice cooperation since this an area where our citizens clearly see the added value of a European approach.
The EU is more than just a system of treaties and institutions. First and foremost it is a large area in which people travel, develop initiatives, live together and work together. People want that area to be an area of freedom, security and justice. Not because it's written down somewhere that we should have one, because it's laid down in a treaty, but because it matters to people in real life.
In the EU the public expects us to make sure that criminals don’t slip through the net. They expect us to agree on measures to make sure they don’t. Measures that yield results. Like the arrangements that will soon enable investigators to compare DNA profiles held in databases throughout the EU. So instead of waiting six months, they will soon know after six minutes whether another member state has important information for a case they are investigating.
The public also expects the EU and its member states to accept the rule of law. They should be able to have full confidence that their fundamental rights are safe. Not only in their own country, but across the EU. If they can be surrendered as suspects to another member state on the basis of the European arrest warrant, they have to be confident of getting a fair trial.
It is our job to make sure that the EU works, and that the public is aware of this. Aware that by working together in Europe, we are fighting crime effectively. That they are part of an internal area that provides not only economic benefits, but also legal safeguards. Then they can move with confidence through the area of freedom, security and justice. Something which the EU also wants. This is what we should be aiming for.
The Dutch government believes that, with the help of the Reform Treaty, we can achieve this aim. The added value of the EU for justice and home affairs can be demonstrated to the public. We will soon be able to reach agreement more quickly in the field of police and judicial cooperation, by means of qualified majority voting. And the European Parliament will have full co-legislative powers, so that agreements will be reached more democratically. We have great confidence in this balance between streamlined procedures and democratic decision-making.
The Reform Treaty will also help increase the public's confidence in the rule of law in EU member states. For example, the Charter of Fundamental Rights will be binding on all EU institutions and member states. The Treaty also paves the way for the Unionto sign up to the European Convention for the Protection of Human Rights and Fundamental Freedoms. For the record, I think we should seize this opportunity as soon as we can.
The European Court of Justice will also have a greater role in the area of freedom, security and justice. The Commission will be given the power to bring infringement proceedings against member states in the area of police and judicial cooperation. And the Court of Justice will in due course be able to give preliminary rulings in this area. These changes will enhance legal unity within Europeand ensure that member states abide by both the letter and the spirit of the Reform Treaty.
But signing the Reform Treaty will not mean the job is done. It will certainly help us achieve our aims and will help point the way, but it is still up to us to set our goals. We will have to examine each policy area in turn. I think it will help build our mutual confidence if we discuss the activities of the Future Group in this area, and do so in good time and more openly. Because, as I have said, we face a number of key moments. That means we will soon have to take new decisions together.
Let me share with you a few thoughts, from a Dutch perspective, on the past, present and future of European police and judicial cooperation in criminal matters. First I will touch briefly on the background that has resulted in the current dimension of cooperation in criminal matters, which I will refer to as the ‘third dimension’. Then I would like to look at ways in which we might improve the way we work together. I will be stressing the importance of confidence and trust between member states at this stage. We have a choice. Leave things as they stand, or make a concerted effort to enhance confidence. I’m sure I don’t need to spell out what my preference is. Finally I’d like to outline my vision for the future: a fourth dimension of cooperation in criminal matters, consisting of a shared European policy, as a manifestation of a shared European identity. We have our destiny in our own hands. Let us not be faint-hearted. (As the French writer Georges Bernanos put it, ‘On ne subit pas l’avenir, on le fait’).
Background to cooperation in criminal matters
So let me start with the background to current cooperation in criminal matters. Originally the focus was on offsetting the security risks brought by the disappearance of checks on internal borders, in the second half of the 1980s. The Schengen partners wanted to supplement the internal market with agreements on police and judicial cooperation.
In 1992 the Treaty of Maastricht made police and judicial cooperation in criminal matters a fully-fledged policy area of the EU. With the Tampere Programme in 1999, a second dimension of cooperation in criminal matters emerged, namely criminal law as a means to protect Community interests.
What's more, Tamperegave political direction for the first time to the full range of judicial cooperation in criminal matters in Europe. The serious terrorist attacks in the United Statesand Europeheightened the need to work together more closely. This was reflected in the Hague Programme in 2004. There was a strong emphasis on improving the exchange of information and operational cooperation. Traditional legal assistance was in part replaced by cooperation based on the principle of mutual recognition. Judgments and other decisions made by courts in one state were automatically recognised in other member states. This was an entirely new way of working together. It gave rise to a wide range of legal instruments.
Possible improvements
This third dimension of wide-ranging cooperation in criminal matters is still very dynamic. We still have a number of important steps to take. Let me mention three of them.
Firstly, we have agreed on many legislative instruments, but implementation is not always as it should be. The 2003 Council Framework Decision on the execution in the EU of orders freezing property and evidence has yet to be implemented by around ten member states, some years after the deadline. And the 2005 Council Framework decision on the application of the principle of mutual recognition to financial penalties has only been implemented by a handful of member states. This is not consistent with what we as member states should be able to expect from each other. But the provisions in the Reform Treaty on the powers of the Commission and the Court to pursue infringements will improve the situation. Member states which fail to implement legislation quickly enough or in full will face corrective action. My own country is no exception.
Secondly, we have to push ahead in certain areas and finish what we have started. This is especially important at operational level. For example, the European evidence warrant will make it possible to obtain documentary evidence by means of mutual recognition. Other evidence that has still to be collected, by means of telephone taps for example, will still have to be sought using traditional channels of legal assistance. This is ineffective. In my view, the gathering of evidence as a whole should be subject to mutual recognition principles, as agreed in the HagueProgramme Action Plan. Our legislation must be practical.
Thirdly, we have to look at what has happened with instruments that have been transposed into national legislation. Have they actually been acted upon in practice? Of all the instruments that have been adopted, only the European Arrest Warrant is currently applied in practice. Let us consider it for a moment. In itself it is impressive that surrender can take place within 60 days, something that in the past could take more like 60 weeks. But in practice there are obstacles.
Take for example a court that is confronted with a European arrest warrant issued in a different member state. The court has to decide on the basis of a very narrow set of criteria whether to surrender an individual. It is a difficult task. It demands knowledge. It demands continuous communication. We have to take concrete steps to bring this about. I therefore welcome the fact that the Reform Treaty creates a legal basis for measures supporting the training of the judiciary and judicial staff.
But besides personal familiarity with the legal order and justice system in other member states, this demands trust and confidence. This takes us to the heart of our current judicial cooperation in criminal matters.
Confidence
In principle, we have this confidence in each other because our common European home is built on separate states with shared values and standards. But sufficient confidence to build further will only exist if there is a stable basis. And we have to recognise that this presumed confidence in each other's rule of law is not something static. Confidence has to be earned and needs to be continuously maintained.
If member states fail to properly fulfil their duty to protect fundamental rights, or if they are not effective enough in investigating and prosecuting international cases, that confidence will be eroded. Confidence between member states and confidence between investigators, public prosecutors and the courts. This in turn will erode the confidence of the public. Because of the way legal systems are interconnected in the EU, the quality and credibility of the rule of law in a given country depends in part on that in the other 26 member states.
We have opted to create instruments – like mutual recognition – that depend, more than in the past, on mutual trust. This means that we also have to take concrete measures to maintain trust. At the very least we have to understand the factors that can undermine and lead to its erosion.
The EU could look for ways in which member states can share experiences and developments in the area of criminal law on a regular basis. On the basis of proposals by the Commission, we could draw up questionnaires and compare the results with each other. This would yield useful data and examples – hopefully best practices. In due course peer pressure could encourage improvements.
I am pleased to see that the Reform Treaty provides for the conduct of objective and impartial evaluation of the implementation of policies in the area of justice and home affairs by member states, in particular in connection with the application of the principle of mutual recognition. This will help generate the necessary confidence.
In the field of justice and home affairs, the words evaluation and monitoring sometimes seem to contain a threat that a body or group of countries would stand in judgement of individual states. But what I am talking about is finding a reciprocal instrument to involve each member state more closely in the proper functioning of the rule of law. Every year, in autumn for example, the European Council could examine developments in the rule of law and discuss the results.
Only if the rule of law works in all member states can we express our shared values so that our citizens know that their fundamental rights in all areas of the EU are safeguarded.
Criminal law as an manifestation of a shared European identity
The idea of ‘shared values’ brings me to a possible vision for the future: European criminal law in a fourth dimension as a manifestation of a shared European identity.
I see a development in Europein the sphere of criminal law towards a shared outlook, a common vision of what merits condemnation and therefore criminalisation. This is reflected in article 69F of the Treaty on the Functioning of the EU.
One example of cooperation in this fourth dimension is the fight against trafficking in human beings, which is explicitly mentioned in articles 69B and 69F of the Treaty on the Functioning of the EU. It is a growing phenomenon, directed at exploitation, through prostitution and in other ways. If we want to take firm action against it, we need the resolve to take joint action. Let me look at this in more detail.
1. Firstly, I feel we must not limit the fight against human trafficking to cases of sexual exploitation. Please don’t misunderstand me – this should certainly be the top priority, but the Netherlandswould also like to see efforts to tackle all forms of exploitation, including economic exploitation in the labour market. Perhaps this could be accorded specific attention in future Commission initiatives. Such as a survey of how member states have implemented the protocol on human trafficking, what measures they have taken, and what the outcome has been in practice.
2. A concerted approach also meansgiving each other technical assistance. For example, the Netherlandsare helping Bulgariato set up a centre of expertise on trafficking in human beings and people smuggling. And the Dutch police are assisting with a project on human trafficking in Romania. Activities include: advising on preparing a national action plan; training of public prosecutors; and training by NGOs and the police in identifying and supporting the victims.
3. Thirdly, prevention is better than cure. The Netherlandsis currently doing a great deal on prevention. The State Secretary for Justice, Nebahat Albayrak, is sending rapid response teams to the countries which aliens, especially children, come from. This way, we can help prevent vulnerable groups of people falling victim to human traffickers.
4. The Netherlands attaches great importance to the protection of victims, and to their safe return and reintegration in their countries of origin. EU member states can do more to work together, especially in countries outside the EU, where the observance of human rights often leaves much to be desired. For example, by conducting risk analyses, sharing experiences and cooperating on the logistical side of return.
5. If we continue to adopt an integrated multidisciplinary approach in the EU to trafficking in human beings, we will have a situation in which many different organisations and agencies are working on particular aspects of human trafficking. In order to avoid fragmentation, the Netherlandswould like see a greater role for the Commission in coordinating all aspects of policy.
Ladies and gentlemen,
In my view it is time to take the next step in European cooperation. Current trends in crime demand that we strengthen our current three dimensional cooperation. It is important thatas far as possible we move towards using the same system for European evidence gathering. The agreements made in the Hague Programme of 2004 have set us on the right track. The time is now ripe to take more far-reaching steps. In my view, the Commission should look into the possibilities of setting European minimum rules for evidence gathering. Because if we can obtain evidence more quickly by means of the European evidence warrant, we must avoid a situation in which that evidence, gathered with due regard to fundamental rights, cannot be used in another member state because of differences in procedural law.
Besides strengthening our cooperation in the third dimension, in certain areas we can even work towards a fourth dimension: criminal law as a manifestation of a shared European identity and shared values.
I mentioned by way of example the fight against trafficking in human beings, but the same applies to the fight against child pornography. The successful ‘Operation Koala’, for instance. This involved joint action taken in 19 member states at the same time, coordinated by Eurojust. As a result, the main person responsible for the crime and 2,500 [two and a half thousand] customers who used the images supplied on the internet could be identified.
For specific crimes of this kind like human trafficking and child pornography, which we all deplore, we can even go a step further, by taking concerted action to enforce our standards. This also applies to terrorism. I expect the European Commission’s proposals will contribute to these efforts. An EU PNR system, for example, is an important tool for tracing journeys taken by terrorists and thereby foiling future attacks. In this way we can protect our common area from these threats.
Thanks to our joint Organised Crime Threat Assessment, we know where the threats are and we can set priorities. It follows that we now have to agree on how we are going to conduct this fight. Who will investigate and who will prosecute? This demands greater national capacity, which in turn demands greater coordination. I envisage a more robust role for both Europol and Eurojust. I believe we should give Eurojust members the tools they need to ensure proper coordination of action. This will only work if member states cooperate fully on joint operations and if capacity is available. Here I think we should make greater use of Joint Investigation Teams.
Only then will criminal law be a genuine manifestation of shared values, because we will be turning our joint vision of what merits criminalisation into joint action. Also, success in this dimension of police and judicial cooperation in criminal matters depends on trust. Only then will it work in practice. In the end this is what matters to the public, who wish to live together in an area of freedom, security and justice in which they have every confidence.