Judicial dimension of the fight against terrorism - Follow-up to the CTC recommendations for action - Hoofdinhoud

COUNCIL OF Brussels, 31 March 2011 THE EUROPEAN UNION

5764/1/11 REV 1

JAI 51 COPEN 12 EUROJUST 10 ENFOPOL 14 COTER 9 FIN 44

NOTE from: Presidency to: CATS/COSI

No. prev. doc.: 13318/10 REV 1 JAI 716 COPEN 175 EUROJUST 83 ENFOPOL 240

COTER 62 + COR 1 15067/1/10 REV 1 JAI 859 COPEN 223 EUROJUST 111 ENFOPOL 292 COTER 72 FIN 490

Subject: Judicial dimension of the fight against terrorism - Follow-up to the CTC recommendations for action

On 8 October 2010, the EU Counter-Terrorism Coordinator presented a number of recommendations to the Council on the judicial dimension of the fight against terrorism. At the CATS meetings of 26 October and 13 December 2010 two initial discussion took place on a possible follow-up to these CTC recommendations.

In accordance with the conclusions by the Chair of CATS, for each recommendation it is indicated whether it is a legislative or an operational one. Even though this distinction is not always very clear, as there are some recommendations which might be given a follow-up through either legislative or operational action or even both, most delegations have welcomed this distinction. Where recommendations address the implementation of already existing legislation, the Presidency has chosen to refer to them as operational. At the CATS meeting of 13 December 2010, it was agreed that COSI should have the primary responsibility for the follow-up to the operational recommendations.

The Presidency has also tried to establish for each of the recommendations whether they are new or already exist, in some form or another (e.g. in existing EU legislation, political decisions, the Stockholm Programme or an action plan). The fact that a recommendation exists already, obviously does not imply that no further work is required. Moreover, the CTC's recommendation may emphasise a different aspect of a recommendation.

Following the CATS Chair's request at the meeting of 13 December 2010, a number of Member

States have commented on some of the recommendations. The list of responsible actors has accordingly been changed in some instances. Some delegations have suggested modifications to some of the recommendations, but the Presidency has declined to amend these recommendations, firstly because these are the CTC's and not the Presidency's recommendations and secondly because this would require a prior and more thorough discussion.

The CTC has presented his recommendations to the Council but these were not put to the Council for formal adoption. Obviously not all recommendations (will) meet with the approval of all Member States. Several delegations have stated their wish to have a discussion on the substance of

these recommendations 1 .Therefore the (…) fourth column to the annex (…) states the procedural

avenue for further follow-up to be given to the recommendations, mostly by mentioning the Council Working Party that will/could be tasked with the further follow-up. As COSI will of course have to decide the forum for following up the operational recommendations, COSI is always mentioned for those recommendations. A number of these recommendations correspond to proposals which are already being prepared (legislative), being implemented (operational) and therefore do not require specific follow-up action. These have been identified in the fourth column as ongoing initiatives. Other measures can only be looked at usefully after other measures have been adopted and/or implemented.

1 Regarding recommendations 2 and 11 it was suggested that it was inappropriate for the

European Union to look into these.

At the CATS meeting of 22 March 2011 the following course of action was agreed by CATS:

• 1) 

  COSI is asked to refer the following operational recommendations to the competent

  Working Party in order to examine what kind of follow-up is required: 1, 2, 5, 6, 7, 9, 11, 16, 18, 19, 20 23 and 24;

• 2) 

  the following legislative recommendations are referred to the competent Working Party

  indicated in the fourth column in order to determine what kind of further follow-up is required: 3, 4, (…) 17, 21, 22;

• 3) 

  the following legislative recommendations correspond to measures under preparation or

  cannot be examined before existing legislation has been implemented or existing legislative

  proposals have been adopted and implemented: 8, 10, 12 13, 14 and 15.

_______________

ANNEX

EU CTC - Judicial dimension of the fight against terrorism –

Suggested follow-up to CTC recommendations for action

RECOMMENDATIONS RESPON- NATURE: NEW OR FOLLOW-UP SIBILITY LEGISLATIVE/ EXISTING WITHIN

OPERATIONAL COUNCIL I. Judicial organisation

R 1. Compensate for the lack of EJTN/ OPERATIONAL NEW COSI/COPEN specialisation in those MS which Eurojust choose not to centralise by offering prosecutors and magistrates dealing with terrorist cases professional advice and training sessions under the

European Judicial Training

Network and with the assistance of the Eurojust National

Coordination System where the contact points for terrorism have a seat

R 2. Catalogue operating MS/ OPERATIONAL NEW COSI/TWG methods between intelligence Eurojust/ and/or services and players in the Europol COPEN judicial sphere and identify good practice, taking account of their respective areas of specialisation.

II. Special investigation techniques and terrorist financing

R 3. Work to improve mutual MS/COM OPERATIONAL/ NEW COSI/COPEN awareness of good practices and LEGISLATIVE OR GENVAL draw up model agreements, and then establish a common judicial framework for certain investigative techniques such as the use of undercover agents and informers, or online searches, and spell out the rules to be observed in the case of surveillance and undercover operations that continue across borders

R 4. Strengthen cooperation COM LEGISLATIVE/ EXISTING/ COPEN

between MS so as to provide OPERATIONAL NEW 1

appropriate protection to witnesses and others cooperating with judicial action

R 5. Reinforce the MS' technical Europol/ OPERATIONAL EXISTING 2 COSI/

capacity and training in the COM GENVAL or investigation of computer-based TWG media by establishing a centre of excellence at Europol, and support this effort with EU funding

1 The Stockholm Programme (3.1.1) refers to the need to offer special protection measures to

victims of crime or witnesses who are at risk within the Union. However, the planned Commission package on victims does not seem to cover this recommendation.

2 Council Conclusions 26 April 2010 an Action Plan to implement the concerted strategy to

combat cybercrime.

R 6. Instruct the CARIN network MS/ OPERATIONAL EXISTING 1 COSI/

to promote more effective use of Network GENVAL the instruments governing of EU cooperation on the detection of asset assets, freezing, seizure and recovery return, by compiling a handbook offices/ on the use of these measures EUROPOL

R 7. Utilise the results of the 5th EJTN OPERATIONAL NEW COSI/ mutual evaluation round to GENVAL develop a training course in financial investigations

R 8. Establish a framework for COM/ LEGISLATIVE EXISTING 2 ONGOING appropriate administrative Council/ INITIATIVE

measures for implementing a EP preventive freeze on assets pursuant to Article 75 TFEU

R 9. Develop the partnership with FIUnet/ OPERATIONAL EXISTING COSI/TWG the private sector, notably by COM/MS or improving the FIUs' system of GENVAL feedback from banks in relation to the financing of terrorism

R 10. Develop a European COM/ LEGISLATIVE EXISTING 3 ONGOING

terrorist finance tracking Council/ INITIATIVE

programme (EU=TFTP) EP

1 Council Conclusions 28 May 2010 on Confiscation and Asset Recovery: 10) Foster financial

investigations by making full use of existing cooperation tools within the framework of Europol, Eurojust and OLAF.

2 Article 75 TFEU calls for establishment of these measures and two expert meetings have

already been organized by the Commission on his issue. The Commission has announced in its Communication on the Internal Security Strategy that in 2011 it will consider devising a framework for administrative measures under Article 75.

3 The Council Decision of 13 July 2010 on the conclusion of the TFTP Agreement with the US specifies that the Commission must submit a "legal and technical framework for the

extraction of data on EU territory" by 1 August 2011. See also Stockholm Programme 4.5.

III. Rights of defence

R 11. Establish an overview of MS/COM OPERATIONAL NEW COSI/

the practices of the various COPEN 1

Member States as regards the checking and protecting of

(intelligence) sources, particularly in cross-border proceedings, whilst safeguarding the rights of defence, especially the principle of an adversarial process

R 12. Implement as soon as Council/ LEGISLATIVE EXISTING 2 ONGOING possible the roadmap on EP INITIATIVE

protection of suspects in criminal proceedings, as provided for in the Stockholm Programme

IV. Judicial cooperation

R 13. Lay down the principle that COM/MS LEGISLATIVE NEW 3 AWAIT

evidence obtained in the context OTHER

of a joint investigation team in MEASURES

4

one Member State, in accordance with the procedural requirements of that Member State, is to be regarded as equivalent to evidence properly obtained in the

Member State of the proceedings as to substance

1 It has been suggested that the COPEN WP could usefully draw upon the study carried out by

Vernimmen-van Tiggelen/Surano, The future of mutual recognition in the European Union.

2 Stockholm Programme 2.4. This is work in progress, regarding measures A and B of the

roadmap.

3 See however the Green Paper on obtaining evidence in criminal matters from one Member

State to another and securing its admissibility.

4 Some Member States suggested that the outcome of the discussions on the European

Investigation Order (EIO) be awaited.

R 14. Consider extending this COM/MS LEGISLATIVE NEW AWAIT

principle to transfers of OTHER

proceedings MEASURES

1

R 15. Taking terrorism as a pilot COM/MS OPERATIONAL NEW/EXIS AWAIT

case, promote a mechanism for TING IMPLEMEN

the settlement of conflicts of TATION 2

jurisdiction: strengthen the mechanisms laid down in the

Framework Decision on the prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings, specifically for the area of terrorism

R 16. Increase the use of joint MS/COM/ OPERATIONAL EXISTING 3 COSI/

investigation teams and their EU Eurojust COPEN funding via Eurojust

R 17. Adopt measures by which MS/ OPERATIONAL EXISTING 4 COSI/

Europol and Eurojust should EUROPOL COPEN

always be involved in joint EUROJUST

investigation teams concerning terrorist cases

1 Some Member States suggested that the outcome of the discussions on the EIO be awaited.

2 Some Member States suggested that the implementation of the Framework Decision on the

prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings be awaited.

3 Stockholm Programme 4.3.1.

5764/1/11 REV 1 GS/np 8 V. International perspective

R 18. Make more systematic use MS OPERATIONAL NEW/EXIS COSI/ of the Eurojust channel in cases TING COPEN/

which extend outside the JAIEX 1

European Union

R 19. Intensify EU assistance COM/ OPERATIONAL EXISTING 2 COSI/

programmes for third countries EEAS/MS JAIEX/ confronted with terrorism, to COTER strengthen their judicial mechanisms

R 20. Take advantage of the MS/ OPERATIONAL NEW COSI/ existence of liaison magistrates Eurojust COPEN between third countries and MS and, on the basis of those experiences, extend this network and establish Eurojust liaison magistrates in third countries with which more intense cooperation is desirable

1 Some Member States suggested that the implementation of current legislation (Decision

2003/48 JHA of 19 December 2002 + Article 27b of the Eurojust decision) be awaited.

2 Certain forms of assistance exist already, but may have to be stepped up. See also Stockholm

Programme 4.3.5.2.

R 21. Start to draw up COM/MS LEGISLATIVE NEW COPEN cooperation agreements with those third countries most often involved in terrorist cases under investigation in the EU, in particular to determine the legal framework for the exchange of information, arrangements for any technical assistance, and the conditions under which joint investigation teams might be established

R 22. Lay down basic criteria for COM/MS LEGISLATIVE NEW 1 COPEN

the acceptance of evidence gathered in a non-Member State

1 See also the Austrian proposal on Police Equal Performance (PEP) – setting-up an umbrella

strategy for South Eastern Europe (DS 1083/11).

VI. Strategy for EU prosecutions and criminal policy

R 23. Increase judicial input in MS/ OPERATIONAL EXISTING/ COSI the composition of COSI, by the EUROJUST NEW participation of Eurojust and the

Consultative Forum of

Prosecutors General/Directors of

Prosecution

R 24. Evaluate the impact of the COM/ OPERATIONAL NEW COSI/

2002 and 2008 Framework EUROJUST DROIPEN 1

Decisions on terrorism: carry out systematic and in-depth monitoring of national case-law, based in particular on Eurojust's analysis (the Terrorism

Convictions Monitor)

_____________

1 Some Member States suggested that the implementation of the 2008 Framework Decision be

awaited.

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