IRELAND S CONTRIBUTION TO THE NEW MULTI- ANNUAL FREEDOM, SECURITY AND JUSTICE WORK PROGRAMME. January 2009

Transcription

1 IRELAND S CONTRIBUTION TO THE NEW MULTI- ANNUAL FREEDOM, SECURITY AND JUSTICE WORK PROGRAMME January 2009

2 Contents: Introduction 1. Legislative Measures under the new Freedom, Security and Justice Work Programme 2. Combating terrorism and serious crime 2.1 Counter-terrorism 2.2 Serious and Organised Crime Drugs Combating Human Trafficking Cooperation on Firearms Control Assets Monitoring 2.3 Policing 2.4 Data-sharing and information exchange 3. Justice 3.1 Criminal Judicial Cooperation Eurojust European Judicial Network for Criminal Matters Criminal Procedure 3.2 Civil law Cooperation Points Improved Enforcement of Cross-border Judgments European Judicial Network in Civil and Commercial Matters Early Review of European Small Claims Procedure 3.3 E-justice 4. Immigration and Asylum 4.1 Practical Cooperation 4.2 Technology and Data-Sharing 4.3 Legal Migration 2

3 INTRODUCTION Over the last number of years the European Union has made great strides in the field of Freedom, Security and Justice (FSJ). Under The Hague Programme the Union has strengthened cooperation in the fight against organised crime and terrorism, improved asylum cooperation, developed a framework to address the challenges of tackling illegal immigration and increased services to citizens in the area of civil law. These achievements have each contributed to a European Union area in which citizens have the freedom to live, work, study, travel and do business while enjoying high protection of their fundamental rights and standards of justice. The new FSJ Programme must evaluate and advance the work already done. Guidelines for the continued development of the FSJ area are set out below. 1. LEGISLATIVE MEASURES UNDER THE NEW FREEDOM, SECURITY AND JUSTICE WORK PROGRAMME Drafting new legislation is an important part of any new work programme in the European Union. It is essential to ensure that legislation remains of the highest quality and import in order to ensure the maximum value added. There are a number of issues relating to the development and implementation of new legislation for the Freedom, Security and Justice Area which would benefit from a renewed outlook under the new FSJ work programme. As the FSJ area moves forward, the emphasis should be placed on the importance of quality of legislation, the use of clear language, improved implementation and the value of impact assessments. When new legislative measures are proposed, the first step for the Council should be to conduct an impact assessment to establish whether new measures are necessary. A feature of such assessments will be to look at measures already in place, to ask whether full implementation of such measures has yet occurred and to consider whether non-legislative measures would suffice. Proposals should only be pursued where an evidence-based need for legislation is proven. 3

4 Legislative proposals should respect and take account of the different legal systems of Member States. Proposals should be considered from a functional perspective and attention given to how new legislation would operate in the different legal systems and cultures of the Member States. Where greater consideration is given to these issues in the early drafting stages, ease of agreement at the later stages may be improved. Efforts should be made to improve the clarity and coherence of language used in legislation. The EU should be an open and transparent Union. Perception of this would be greatly improved if legislative measures were written in a user-friendly, clear and concise manner as far as possible. The aim should be for documents to be easily accessed and understood by citizens as well as practitioners. 2. COMBATING TERRORISM AND SERIOUS CRIME 2.1 Counter-terrorism Terrorism is a global phenomenon which has the potential to affect all Member States. The EU has achieved a substantial progress in designing counter terrorism measures under the Hague Programme. The development of the new FSJ work programme presents an opportunity to reflect on the overall effect of mechanisms currently in place which are aimed at countering terrorist threats. Every opportunity must be made to enhance practical cooperation through the collective efforts of the European Union in the fight against terrorism. Ireland recognises that all of the Union s citizens, and the Union itself, benefit from continued, strong action to combat terrorism in all its manifestations. Bearing that in mind, we must always ensure that all measures are proportionate and take due account of the fundamental rights of EU citizens. Where terrorist threats are identified, practical cooperation and rapid action is vital. Every effort should be made to share information and pool data on such matters. While exchanging data raises sensitive issues relating to the rights of citizens, the 4

5 Union must work to ensure that practical cooperation takes place with maximum effectiveness and minimum delay. 2.2 Serious and Organised Crime The blight of organised crime destroys lives. It also undermines legitimate business activity and has a negative impact on the economies of the Member States. Combating organised crime and its cross-border spread must remain a priority of the Council and Member States. A multi-disciplinary and coordinated approach, at EU and National levels, by the competent law enforcement authorities is crucial to successfully tackling this issue. The role of Europol must also be highlighted, particularly in the context of the recent focus on the production of threat assessments the Organised Crime Threat Assessment (OCTA) and the Russian Organised Crime Threat Assessment (ROCTA). These positive steps must be appraised and built upon under the new FSJ work programme. Practical cooperation between law enforcement authorities throughout the EU and sharing of best practices in this area should be supported with a focus on several important areas: Drugs The introduction of the new dedicated EU Action Plan on Drugs , as part of the EU Drugs Strategy , will form an integral part of the new multi-annual programme in the FSJ area. This focuses on: - reducing the demand for drugs; and - reducing the supply of drugs. Trafficking, supply and sale of drugs within the Union are at the very core of the business of the organised crime world. It will be vital to tackle these activities to have a true impact on cross-border organised crime. Member States should be encouraged to improve coordination and cooperation in the drugs field at both European and national level, making drugs policies relevant to civil society. Ireland supports regional initiatives such as the Maritime Analysis and 5

6 Operations Centre (Narcotics) in Lisbon, which is providing a platform for intelligence-sharing and for operational cooperation between certain EU States concerned about the trafficking of cocaine to Western Europe. Other regional initiatives are currently being planned and their development should be supported if they will lead to enhanced practical cooperation. Coordination efforts between law enforcement authorities are also crucial in strengthening the effectiveness of law enforcement initiatives aimed at countering drug production and trafficking. Cooperation efforts in conjunction with Europol should be enhanced in order to strengthen an intelligence-led approach to combating trafficking and supply of drugs across EU borders. In addition to an internal review of measures aimed at tackling the problem of drugs within the EU, it is important to recognise the need for cooperation with third states in the fight against trafficking. Another area which will require close monitoring is the increased use of weakly-governed countries in West Africa as a transit point for trafficking narcotics into the EU. The possible emergence of narco-states in this region is an issue which ought to receive targeted attention before the problem becomes deeply imbedded Combating Human Trafficking Trafficking in human beings is a heinous crime which must be tackled under the new FSJ work programme. Significant strides have been made in this area with the development of the 2005 EU Action Plan on Human Trafficking and the recent work of the European G6 Initiative against Human Trafficking. The aim of these initiatives is to ensure that the EU becomes a more hostile environment for criminal elements engaged in trafficking of human beings. The EU should aim to develop the four strand approach adopted in this initiative which is composed of: - an intelligence strand led by Europol - an enforcement strand dealing with labour exploitation and sexual exploitation - an awareness raising strand - a victims strand. 6

7 The objective, over the course of the next work programme, should be to develop these initiatives and to aim for maximum implementation of the 2005 EU Action Plan on Human Trafficking. Priority should be given to practical initiatives which address the seriousness and prevalence of this issue across the Union Cooperation on Firearms Control The escalation of firearms usage in both organised and ordinary crime is a very serious concern for Ireland and the Union. Control and cooperation on firearms trafficking is crucial in the fight against criminality, especially organised crime. As a result, the manufacture, possession and licensing of firearms must be carefully scrutinised in all EU Member States. While much of the control side of this issue falls within the responsibility of other Council formations, action can be taken under the FSJ work programme to enhance cooperation and coordination in this field between Member States. Significant amounts of firearms are in the control of criminals and available on the illegal market across the EU. Combating illegal trafficking and transfer of firearms must be a priority of the new multi-annual FSJ work programme. While plans are currently in motion at a European level to enhance rules on record-keeping and marking, we must work to further enhance cooperation between the national administrations on this matter. Another area of concern is the issue of licensed firearms. An increase in the number of handguns being licensed has bred serious unease at a growing gun culture in Europe. While it is regrettable that the activities of criminal elements should impinge on the interests of law abiding licensed firearms owners, we cannot overlook the fact that the overall level and type of licensed firearms prevalent in the community is relevant to crime prevention. Accordingly, cooperation on the issue of control of both licensed and unlicensed firearms should be a priority in the FSJ area over the coming years as part of a multifaceted approach to tackling the phenomenon of organised crime and subversive cross-border criminality. While greater coordination and cooperation is required at 7

8 EU level in order to confront this problem, we must ensure that all proposals are designed to complement domestic legislation and initiatives from Member States Assets Monitoring Monitoring the financial assets of organised criminal and terrorist groups is a key method of tackling organised and serious crime at its roots. Considerable success has been achieved in this field with the development of assets monitoring legislation and allocation of resources to specialised policing units to monitor criminal assets. Another effective area for law enforcement in tackling organised crime is the interception and seizure of criminal cash, particularly the detection of transnational movements of such cash which is becoming increasingly prevalent due to requirements on financial institutions to report suspicious financial transactions to competent authorities. Through enhanced practical cooperation, Member States have the capacity to use available administrative and judicial powers to deprive transnational criminal organisations of their financing. This must involve ongoing information sharing among Member States and, in some cases, the involvement of non-member States in cooperation efforts. The CARIN Network, whose main objective is improving crossborder cooperation on asset recovery issues, now includes experts from over 40 countries, including 26 Member States of the European Union. This network should continue to be supported by the Commission and by Europol. In 2008, the Commission adopted a communication on the proceeds of organised crime which proposes ten strategic priorities to strengthen the fight against organised crime by enhancing confiscation and asset recovery. As most serious organised crime has an international element to it, the priorities set out in this communication should be the basis for future action in this area. 2.3 Policing In relation to law enforcement at EU level, every effort must be made to encourage close cooperation between Member State law enforcement authorities and Europol. Europol lies at the heart of European law enforcement and Member States must 8

9 continue to maximise the effectiveness and cooperation of this central structure as a means of preventing and combating terrorism, unlawful drug trafficking and other serious forms of international organised crime. CEPOL should also be used to facilitate greater awareness and understanding of the differences in policing systems and operational practices across the Union. Its potential as a key institution for information sharing, development of best practices and cooperation should be a developmental aim of the new FSJ work programme. One key area in which this could be applied is in facilitating improved understanding and awareness of the differences between Member States investigatory systems and the differing roles played by police and prosecutors. By promoting understanding of the similarities and differences between the respective systems of each Member State, practical cooperation could be greatly enhanced. 2.4 Data-sharing and Information Exchange An effective data-sharing and information exchange scheme is central to any proposal to combat trans-european serious crime and terrorism. Work must be carried out to further development and coordination of this vital area as a priority plan under the new FSJ work programme. One of the key objectives of the Union is to provide citizens with a high level of safety within an area of freedom, security and justice. In order to achieve this aim, Member States need to cooperate more closely, particularly in respect of the exchange of information between their competent law enforcement authorities and between them and such authorities in third countries. It is recognised that secure, efficient data sharing is, and will remain, a priority for Member States within the European Union as a means of: tackling serious and organised crime and terrorism; strengthening EU borders; improving child protection; and improving access to justice for EU citizens. While there are a number of different initiatives ongoing which seek to improve the exchange of information between Member States, it is necessary to consider a more strategic approach to the Union s needs and how they might best be achieved. In this regard, the future FSJ work 9

10 programme should aim to develop a comprehensive, coherent and outward-facing EU-level information management and data protection strategy which: - identifies the most efficient and effective way of delivering those information requirements, including through the use of ICT and interoperable systems; and - consolidates, simplifies and modernises data protection rules as they apply to data exchange, including in respect of third countries. 3. JUSTICE 3.1 Criminal Judicial Cooperation A central aim of the European Union should be to ensure that its citizens are protected from criminal activity by fostering strong judicial standards, whilst respecting the fundamental rights of those charged with criminal offences. In this context, mutual recognition should remain at the heart of judicial cooperation in criminal matters, in keeping with the Tampere Conclusions of 1999 and The Hague Programme, which recognised mutual recognition as a key objective Eurojust In recent years, Eurojust has made progressive strides in its role of assisting Member States' authorities in dealing with the investigation and prosecution of serious crossborder and organised crime. Eurojust has contributed to an environment of improved coordination between competent authorities of the Member States in investigations and prosecutions and improved cooperation by facilitating the execution of international mutual legal assistance and extradition requests. Under the new work programme, continued efforts must be made to consolidate Eurojust s cooperative role and to continue to encourage Member States to work together to achieve its goals. The focus should be on ensuring the implementation of the recently agreed Eurojust Council Decision, which works to enhance practical cooperation, provide clarity on the role of National Members and the College and which consolidates Eurojust s role in fighting cross-border crime. 10

11 3.1.2 European Judicial Network for Criminal Matters The European Judicial Network (EJN) has developed considerably in the ten years since its inception. A comprehensive network of national contact points and online tools have been developed to aid and support judicial cooperation in criminal matters. The resources provided by the EJN should be exploited to the maximum extent possible over the course of the new FSJ work programme and efforts should be focused on making the EJN more practitioner-focussed. Another facet of this would be to include greater promotion of the network s profile at domestic and regional level in order to raise awareness amongst practitioners Criminal Procedure The right to a fair trial is an important fundamental right which must be promoted across the Union, however, we must recognise the potential difficulties which might be posed by a general measure on criminal procedure law, given the differences in Member States justice systems. Much agreement on these issues has already been achieved by the ongoing work of the ECHR and the Council of Europe. The new FSJ work programme may present some scope for the development of limited measures in this area. However, it is important that resources are not exhausted on proposals which would constitute a duplication of efforts and remain focused on the utility of the existing legal framework. 3.2 Civil Law Cooperation Points Where legislative initiatives in the field of civil judicial cooperation are concerned, the new work programme should focus on services to the public, and on improving accessibility to justice. Particular attention should be paid to timely reviews of existing instruments, accompanied by proposals for amendment where appropriate Improved Enforcement of Cross-border Judgments A number of Regulations have been adopted which either provide for the mutual recognition of judgments given in particular circumstances (European Enforcement Order) or which establish particular procedures for dealing with claims in a crossborder context (Order for Payment procedure, Small Claims procedure). A common feature of these Regulations is that an order given in one Member State is enforced 11

12 almost exclusively under the law of another Member State (the enforcing State). Issues of transparency, efficiency and effectiveness immediately arise. Priority should therefore be given to legislative measures dealing with enforcement in a cross-border context. The ideas contained in relevant Green Papers (improving the efficiency of the enforcement of judgments in the European Union: the attachment of bank accounts, and effective enforcement of judgments in the European Union: the transparency of debtor s assets) should provide a useful platform for future action in this area. Building upon the European Enforcement Order Regulation and the European Small Claims Procedure Regulation, consideration should be given to extending the abolition of exequatur to all contested judgments in the civil and commercial area European Judicial Network in Civil and Commercial Matters The European Judicial Network in civil and commercial matters should continue to produce practice guides (non-interpretative) on the application of Regulations, particularly those dealing with the European Order for Payment procedure, the European Small Claims procedure, and Maintenance Obligations. Consideration could also be given to the development by the EJN of a practice guide on the Mediation Directive Early Review of European Small Claims Procedure Consideration should also be given to an early review of the 2,000 ceiling which applies to the European Small Claims Procedure, notwithstanding the fact that this Regulation will only come into force on 1 January Anecdotal evidence is that the threshold is not considered to be appropriate, especially having regard to difficulties which may arise in the context of cross-border enforcement, and that creditors may choose to pursue their claims through other means. 3.3 E-Justice The importance of information technology and its cross-border use has become a key topic at European level. One of the core issues has been the creation of a specialised E-Justice website or portal for citizens. A number of initiatives already exist and are in developmental stages, both at European and national levels regarding E-Justice 12

13 initiatives. The scope of operation has evolved to include new areas such as civil legal aid, mediation and translation. It is important to bear in mind the long-term nature of the E-justice project. Individual Member States are not required to fully participate in all aspects of E-Justice from the outset. It is crucial that the voluntary aspect of participation is maintained, having regard to the relative technological advancement of each Member State. The objective should be for Member States to become involved in due course according to the development of technical capacity. Obviously it would be important that appropriate funding be provided to assist in this area. 4. IMMIGRATION, ASYLUM AND FRONTIERS The EU Pact on Immigration and Asylum provides a good road map for common action into the future. It provides the necessary balance between EU competence and that of the Member States and is sufficiently broad in scope to provide a comprehensive approach to this area. The general thrust and spirit of the Pact should be strongly reflected in the Stockholm Programme. 4.1 Practical Co-operation The programme should have a strong emphasis on practical co-operation to maximise the potential of existing legislation and also recognising that in some cases effective common action can take place without the need for legal harmonisation. There are already in place existing structures such as Frontex, GDISC, Eurasil, CIREFI and the European Migration Network that would provide a strong platform for co-operation. These can be supplemented by Expert Groups where required. We also look forward to the Commission s proposals in the area of a European Asylum Support Office as a means of facilitating practical co-operation in the asylum area. Priorities should include: - Intelligence gathering and sharing; - Joint Operations including shared return flights through Frontex; - Best practice information pooling; 13

14 - Concerted action in preventing abuses of immigration systems and legal instruments; - Concerted action to reduce the pull factors for illegal immigration and the feasibility of illegal presence; and - Practical co-operation actions within the existing asylum acquis. 4.2 Technology and Data Sharing The use of advanced and interoperable technology and the exchange of information between Member States are critical in controlling the EU Border. Priorities should include: - Maximising the data exchange through SIS II and VIS. - Development of an EU wide ICT strategy in the area of Border control with a focus on biometrics, system interoperability, common technologies and standardised equipment, and protocols for data sharing. 4.3 Legal Migration Notwithstanding the current economic difficulties, the long term future of the EU will require sustained and sustainable levels of migration. Such migration must be legal and ordered. It must also respect the principle of community preference. Priorities should include: - Developing models for circular migration - Evaluation of effectiveness of existing instruments - Ensuring that labour migration is demand led. 14