FECL 51 (May/June 1997):

HIGH LEVEL GROUP PRESENTS "ACTION PLAN" AGAINST ORGANISED CRIME

At the Dublin Summit in December, the European Council commissioned a ‘High Level Group’ (HLG) of senior police officials from member states with drawing up a plan of action against organised crime. The plan was presented in March and approved by the Amsterdam European Council. Among other things, the HLG recommends a further significant enlargement of Europol's competencies as well as "joint action" aimed at making it an offence in all member states to "participate" in a "criminal organisation". In the opinion of the High Level Group, these and many other far-reaching policy objectives should be realised before the end of 1999.

Since the Action Plan is about "organised crime", some attempts are made in the introduction to define the evil in question. Thus, we are told by some of Europe's most high-ranking police officers that criminal behaviour "no longer is the fact of individuals only, but of organisations that pervade the various structures of civil society, and indeed society as a whole", and, moreover, that "Internet and electronic banking" are "extremely convenient vehicles" for committing crime and laundering money". We further learn that "the major driving force behind organised crime is the pursuit of financial gain" and the ensuing "need to launder the profits thereafter". In view of such low level phrase-mongering one can only note that the "high level" police officials are not very clear about the threat they seem determined to combat. In the absence of any useful definition, they note that in order to tackle organised crime, you have to "know your enemy" and "agree on the characteristics which make it both dangerous and, hopefully, vulnerable". Very true, indeed.

 

Criminal law approximation through "Joint Action"

The fact that the HLG does not seem to "know its enemy" does, however, not prevent it from recommending stringent measures to combat it. The Action Plan lists a number of political guidelines which are specified later in the text in operational terms. Among other things the plan recommends that the Council adopt a Joint Action aimed at making it an offence under the law of each member state for a person present on its territory, "to participate in a criminal organisation, irrespective of the location in the Union where the organisation is concentrated or is carrying out its criminal activity". The Council should further examine other areas where an approximation or harmonisation of member states' laws could best contribute to combating organised crime. Significantly, the HLG does not recommend Conventions, but instead Joint Action as the appropriate instrument for achieving "approximation" in the above fields. The reason for this seems obvious: conventions must be submitted to national parliaments for ratification, which in many cases has proven to be a time-consuming exercise. Joint actions are not subjected to this minimal form of democratic debate and scrutiny, and can be realised far more quickly.

 

The catch-all offence of "participating in a criminal organisation"

It is suggested in the Action Plan that the offence of "participation in a criminal organisation" could consist in the behaviour described in Article 3, §4 of the Convention on Extradition signed by the member states in September 1996 (see FECL No.45: "Europol Convention ready for ratification"). According to this provision, the offence of participating in a criminal organisation consists in a behaviour contributing to the commission of a number of types of serious crime, including politically motivated crimes, by a group of persons acting with a common objective, even when the person concerned is not personally taking part in actually carrying out the crimes in question.

For the time being, in a number of member states participation or membership in a criminal organisation is not a punishable offence. In countries such as Germany, Spain, Portugal, and other countries, where it is an offence, the relevant provisions have repeatedly drawn strong criticism because of their catch-all character, which has time and again led to people being investigated, and sometimes sentenced, without their having engaged in any concrete criminal activity.

It lies in the nature of the targeted organisational structures, that they usually are clandestine, lack any formal membership status, and often partly overlap with perfectly legitimate organisations. Consequently, in practice, it often proves difficult to clearly define at which point in time and through which concrete behaviour membership or "participation" in an alleged criminal organisation actually begins and - just as important - where it ends. As trials against alleged supporters of ETA in Spain, the IRA in the UK and Ireland and the "Red Army Faction" in Germany show, there is a serious risk of innocent people being sentenced on the basis of arbitrary concepts of "guilt by association".

Ironically, the most recent demonstration of the elasticity of the term "criminal organisation" was made at the EU summit in Amsterdam, when Dutch police preventively arrested hundreds of non-violent anti-EU protesters for alleged membership in... a "criminal organisation" (see in this FECL: "Mass arrests at the Amsterdam Summit" and "Opinion").

 

Speed up adoption and ratification of "essential" Conventions

All finalised European Conventions relevant to the fight against crime should be ratified before the end of 1998 by all member states, the Action Plan emphasises. This affects 8 Council of Europe conventions (on, among others, mutual assistance in criminal matters, extradition, customs cooperation, fight against drugs and suppression of terrorism) and 6 EU conventions, including the Convention on Extradition (target date: 1998) and the Europol Convention (target date: end of 1997).

With regard to extradition, the Action Plan particularly urges the member states to ensure at the national level that extradition requests can be dealt with "in the most simple and expeditious manner". Above all, they shall ensure that "the right of asylum is not abused to avoid justice by offenders involved in serious crime".

 

A legal basis for "modern investigative methods"

The Naples II draft Convention on customs cooperation and a draft Convention on mutual assistance in criminal matters should be finalised by the end of this year. The latter convention should render the reservations made to the corresponding Council of Europe Convention "superfluous". The HLG further recommends "reconsideration of the requirement [under the Council of Europe Convention] of double criminality". According to the principle of double criminality, a requested state must grant assistance to the requesting state only if the offence concerned is punishable also in the requested state. To depart from this principle, as recommended by the HLG, would amount to weaken the rights of the accused.

Regarding the latter convention, the Action Plan says that a legal basis should be created for "the trans-boundary application of certain modern investigative methods, such as controlled delivery, deployment of undercover agents and the interception of various forms of telecommunication".

 

Coordination and centralisation of policing at the national level

Time and again the Action Plan advocates centralisation and coordination as an effective means of combating crime. It proposes that "competent law enforcement agencies" in each member state coordinate their actions at the national level, share information and act in a concerted manner. For this purpose, "multidisciplinary integrated teams" should be set up, "specifically in the area of organised crime" (The idea of multidisciplinary teams seems to be drawn from a German creation of the late 80s, the KGT (Koordinationsgruppe Terrorismusbekämpfung: Coordination Group for the Fight against Terrorism). The KGT comprises representatives of all authorities involved in the fight against terrorism, including the customs, the secret services and the military intelligence service).

The HLG further proposes that each member state designate a body with "overall responsibility for the coordination of the fight against crime". This body would at the same time constitute a "single contact point" for mutual assistance between the member states, providing access to all national law enforcement agencies responsible for the fight against organised crime. In the opinion of the HLG, the Central National Units of Europol (NCBs), the Interpol National Central Bureaux, and the Schengen-member states' SIRENE bureaux should all be brought together in these single central national contact points, whose role would be to serve as an "interface in bringing competent authorities in the Member States and the Commission into contact with each other rapidly".

In order to render cooperation between the various national coordination bodies more effective, the member states and the European Commission are to "identify mechanisms for the collection and analysis of data" so as to obtain a picture of organised crime in each member state, according to common standards of assessment. Information is to be organised in such a way that it is "readily accessible for investigation and prosecution at the national level and can be effectively used and exchanged with other Member States".

 

Boosting Europol

Europol will be integrated into this activity. It will also act as an intermediary in developing closer cooperation with the EU's transatlantic partners, as well as Russia and Ukraine. More generally, the HLG recommends that Europol be authorised to "cooperate and liaise with third countries and international organisations". In addition to this, Europol should be enabled to:

- "facilitate" and "support" specific investigative actions by the respective competent national authorities, among others by Europol officials participating "in a support capacity" in joint investigation teams of the member states;FECL 56 (December 1998):

- "ask" the competent authorities of the member states to conduct investigations and "draw the attention of one or more Member States to the importance of having certain matters investigated" (Formally, member states would not be obliged to take action as suggested by Europol, but in practice it is likely to prove very difficult for the competent national authorities concerned to refrain from fulfilling the wishes of the Union's central and most well-informed police body);FECL 56 (December 1998):

- be "instrumental" with respect to the collation and the exchange of information regarding "suspicious financial transactions", by, among other things, running a system to be created for exchanging information concerning suspected money-laundering at the European level (to this end, the Europol Convention would have to be supplemented with a provision permitting this);FECL 56 (December 1998):

- seek access to the Schengen Information System (SIS) or its European successor (the European Information System, EIS).

 

Judicial control no big issue

The HLG does not express itself on the legal implications of the proposed massive extension of Europol. It merely notes that the Council will have to assess whether the development of the role of Europol requires amendments to the Convention.

While the Action Plan is specific and sets short time limits as far as measures are concerned which aim at strengthening police cooperation under the de facto leadership of Europol, it is remarkably reserved with regard to the crucial question of how to ensure an acceptable standard of judicial control over the proposed extended police structures. Judicial cooperation needs to be brought to a level comparable to police cooperation, otherwise there is a risk of "distortion of the system", the HLG quite correctly notes. However, the only action recommended is an "in depth study" of the problem. The study should "examine the place and the role of judicial authorities in their relations with Europol, in step with the enlargement of Europol's competencies". In particular, it should address the question of whether today's ad hoc network of judicial cooperation should in the long term be transformed into a more permanent structure. The target date set for the "in depth study" is mid-1998.

 

Commonplace talk on root causes of crime

The central item of finding ways to prevent crime by social measures is only superficially addressed in the Action Plan. "Socially weak groups are vulnerable to the perspective of a criminal career", it says. EU structural funds such as the European Social Fund and URBAN should be used to "prevent large cities from becoming breeding grounds for organised crime". In the view of the HLG, those funds can help "those most at risk of exclusion from the labour market and thus alleviate the circumstances that could contribute to the development of organised crime". This is a tiny step in the right direction. Indeed, a comprehensive plan of action against unemployment and other forms of exclusion on the rise in the EU would certainly be a more successful way to fight against crime, be it "organised" or not, than continually extending an expensive police apparatus. However, the main focus of the measures recommended in the Action Plan does not suggest that a corresponding re-orientation of anti-crime policies can be expected soon.

 

Source: High Level Group Action Plan to combat organised crime, Brussels, 9.4.97, 6276/4/97 Rev 4 Limite JAI 7.