Select Committee on European Scrutiny Fortieth Report


9. GENOCIDE AND CRIMES AGAINST HUMANITY


(a)
(23622)
10204/02

(b)
(23805)
11562/02


Proposal from the Kingdom of Denmark for a draft Council Decision on the investigation and prosecution of genocide, crimes against humanity and war crimes.

Proposal from the Kingdom of Denmark for a draft Council Decision on the investigation and prosecution of genocide, crimes against humanity and war crimes.


Legal base:Articles 30, 31 and 34(2)(c) EU; consultation; unanimity
Document originated:(a) 13 June 2002
(b) 3 October 2002
Deposited in Parliament: (a) 8 Jul 2002
(b) 30 September 2002
Department: Home Office
Basis of consideration: (a) EM of 1 August 2002
(b) EM of 15 October 2002
Previous Committee Report: None
To be discussed in Council: JHA Council 28-29 November 2002
Committee's assessment:Legally and politically important
Committee's decision:Not cleared; further information requested


Background

  9.1  The Council Common Position 2001/443/CFSP of 11 June 2001 on the International Criminal Court[13] recounted that crimes within the jurisdiction of the Court were of concern to all Member States and that the Member States were determined to cooperate in the prevention of such crimes and in putting an end to the impunity of perpetrators of those crimes. On 13 June 2002, the Council adopted a Decision setting up a European network of contact points in respect of persons responsible for genocide, crimes against humanity and war crimes (Council Decision 2002/494/JHA)[14].

The draft Council Decision

  9.2  Document (a) is a proposed draft Council Decision which aims to enhance the ability of law enforcement authorities to co-operate in the investigation of and prosecution for genocide, crimes against humanity and war crimes. It has been superseded by the current version, document (b), which is the current version reflecting the outcome of discussions in the relevant Council working group and the Article 36 Committee[15].

  9.3  Article 1 of the revised proposal defines the material scope of the proposal as being co-operation in the investigation of and prosecution for genocide, crimes against humanity and war crimes. The original proposal referred also to 'similar serious offences, including terrorism' but this has been deleted. The aim of the Decision is stated to be to 'increase co-operation between national units in order to maximise the ability of law enforcement authorities in different Member States to co-operate effectively'.

  9.4  Article 2 is concerned with co-operation between immigration and law enforcement authorities. It requires Member States to 'take measures ensuring that the immigration authorities shall be responsible for informing the law enforcement authorities' in cases where, in connection with the processing of an application for a residence permit, facts are established which give rise to a suspicion that the applicant has committed one of the crimes referred to in Article 1. Article 1(2) further requires Member States to take the necessary measures to ensure that the relevant national law enforcement and immigration authorities are able to exchange the information 'which they require in order to carry out their tasks under this provision effectively'.

  9.5  Article 3 requires Member States to assist one another in investigating and prosecuting the crimes referred to in Article 1, but this is to be in accordance with relevant international agreements and national law. Article 3 further provides for the provision of information by law enforcement and immigration authorities in accordance with relevant international agreements and national law. A recital to the draft Decision (which formerly appeared as part of Article 2) provides that Member States should 'ensure that law enforcement and immigration authorities have the appropriate resources and structures to enable their effective co-operation and the effective investigation and prosecution of genocide, crimes against humanity and war crimes'.

  9.6  Article 4 requires Member States to 'consider the need to set up or designate specialist units' within the competent law enforcement authorities with particular responsibility for investigating or prosecuting the crimes referred to in Article 1.

  9.7  Article 5 requires Member States to coordinate 'ongoing efforts to investigate and prosecute' persons suspected of the crimes referred to in Article 1. Article 5(2) requires the contact points established by Council Decision 2002/494/JHA to meet at regular intervals with a view to exchanging information about experiences, practices and methods. Article 5(2) provides that such meetings may take place in conjunction with meetings of the European Judicial Network, and that representatives of the International Criminal Tribunals for the former Yugoslavia and for Rwanda, as well as representatives from the International Criminal Court, may attend.

  9.8  Article 5bis provides that any exchange of information or processing of personal data under the Decision must take place in accordance with international and domestic data protection legislation.

The Government's view

  9.9  In his Explanatory Memorandum of 15 October 2002 the Parliamentary Under-Secretary at the Home Office (Mr Bob Ainsworth) explains that the proposal will have no significant impact on UK law, since the immigration authorities may already exchange data with the police when a serious offence is suspected. The Minister indicates that the UK would implement those parts of the Decision which require the exchange of information with other EU countries by means of existing networks for police and judicial cooperation.

  9.10  The Minister refers to the concerns as to subsidiarity which he raised in his earlier Explanatory Memorandum of 1 August 2002. On that occasion, the Minister stated that the Government was not convinced that Articles 2, 3(1) and 4 of the proposal fully complied with the principle of subsidiarity, since those provisions were concerned with the exchange of information, and requiring effective investigation and prosecution within individual Member States. The Minister explained that the Government was not sure how this related to the power to facilitate and accelerate co-operation between Member States and that the Government was unconvinced that EU-wide action would add value.

  9.11  In his most recent Explanatory Memorandum, the Minister explains that these subsidiarity difficulties have 'eased', because those parts of Articles 3 and 4 which required Member States to investigate and prosecute, and to make resources available to guarantee that this would be effective, have been transferred to the recitals.

  9.12  In relation to Article 2, the Minister stated previously that the concern over subsidiarity arose because, by requiring the exchange of information between national immigration and law enforcement authorities, the proposal sought to regulate Member States' internal systems. The Minister now states that the purpose of the instrument has been clarified in Article 1 so as to make clear that its aim is to improve the ability of law enforcement authorities to co-operate effectively in investigating the relevant offences. The Minister also explains that, since Article 2 would have no practical impact on the UK as the provisions it requires are already in place, he does not consider that these subsidiarity concerns 'now have weight'.

  9.13  As for the policy implications of the revised proposal, the Minister explains that the changes which have been made meet a number of the Government's concerns with the earlier text, and that the Government can now support the revised text. The Minister welcomes the deletion of the reference to terrorism in Article 1 and the clarification of the aim of the measure.

  9.14  In relation to Article 2, the Minister comments as follows:

      "We can see some advantage to what Article 2 proposes, as it may increase the amount of information about war crimes that is available to be exchanged between law enforcement authorities in the EU. The proposal no longer suggests that law enforcement authorities be involved in the processing of applications for residence permits, which reduces the likelihood of its infringing on immigration policy (which is a matter for Title IV TEC). We can therefore, support Article 2."

  9.15  The Minister notes that the requirement to appoint coordinators has been deleted from Article 5, this being replaced by a reference to the contact points established under Council Decision 2002/494/JHA, and welcomes the provisions of Article 5 bis on data protection.

Conclusion

  9.16  We note the Minister's view that his concerns over subsidiarity have been 'eased' by the revised version of the proposal. However, we consider that the proposal, and Article 2(1) in particular, interferes with the internal organisation of Member States' immigration and criminal justice systems. We do not consider that it is appropriate for an EU instrument to impose obligations on one part of a Member State's administration in relation to another, and we ask if the Minister shares this view.

  9.17  We ask the Minister to explain his view that his subsidiarity concerns over the requirements to investigate and prosecute and to make resources available to guarantee that this would be effective, have been 'eased' because these requirements appear in the recitals rather than in Articles 3 and 4 of the proposal.

  9.18  We also ask the Minister if this proposal serves any useful purpose which is not already achieved by existing EU instruments or which could not be achieved by informal cooperation between the authorities of Member States.

  9.19  We clear document (a) on the grounds that it has been superseded, but we shall hold document (b) under scrutiny pending the Minister's reply.



13  OJ No L 155 of 12.6.2001, p.19. Back

14  OJ No L 167 of 26.6.2002, p.1. Back

15  A committee of senior officials established under Article 36 EU to give opinions to the Council. Back


 
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