Select Committee on European Scrutiny Thirty-Fourth Report


3. POLICE AND JUDICIAL CO-OPERATION TO COMBAT TERRORISM


(a)
(23395)
7153/02


(b)
(23535)
7756/1/02


(c)
(23549)
7756/2/02


(d)
(23560)
7756/3/02



Initiative of the Kingdom of Spain with a view to adopting a Council Decision on the implementation of specific measures for police and judicial cooperation to combat terrorism in accordance with Article 4 of Council Common Position 2001/931/CFSP.

Initiative of the Kingdom of Spain with a view to adopting a Council Decision on the implementation of specific measures for police and judicial cooperation to combat terrorism in accordance with Article 4 of Common Position 2001/931/CFSP.
 

Initiative of the Kingdom of Spain with a view to adopting a Council Decision on the implementation of specific measures for police and judicial cooperation to combat terrorism in accordance with Article 4 of Common Position 2001/931/CFSP.
 

Initiative of the Kingdom of Spain with a view to adopting a Council Decision on the implementation of specific measures for police and judicial cooperation to combat terrorism in accordance with Article 4 of Common Position 2001/931/CFSP.

Legal base:Articles 30, 31(e) and 34(2)(c) EU; consultation; unanimity
Document originated:(b) 23 May 2002

(c) 7 June 2002

(d) 11 June 2002

Deposited in Parliament:(b) 5 June 2002

(c) 12 June 2002

(d) 14 June 2002

Department:Home Office
Basis of consideration:(b) to (d) EM of 14 June 2002
Previous Committee Report:(a) HC 152-xxix (2001-02), paragraph 5 (15 May 2002)
To be discussed in Council:13-14 June 2002
Committee's assessment:Legally and politically important
Committee's decision:Not cleared; further information requested

Background

  3.1  On 28 September 2001, the United Nations Security Council adopted Resolution 1373 on the financing of terrorist acts, freezing of terrorist funds and the prevention of movement of terrorists and terrorist groups. The resolution also called on States to afford one another the greatest measure of assistance in connection with criminal investigations. Following the adoption of UNSCR 1373, the Council adopted a Common Position on the application of specific measures to combat terrorism (2001/931/CFSP)[3]. Article 4 of the Common Position required Member States to afford each other, through police and judicial cooperation in criminal matters within the framework of Title VI of the EU Treaty, the widest possible assistance in preventing and combating terrorist acts.

The draft proposals

  3.2  The proposals put forward by Spain (in documents (a) to (d)) are versions of a draft Council Decision aimed at giving further effect to Article 4 of the Common Position by increasing cooperation between national authorities and Europol and Eurojust in relation to investigations involving persons and organisations identified in the Annex to Common Position 2001/931/CFSP. We considered the first draft of the proposal (document (a)) on 15 May. Documents (b) to (d) are subsequent versions.

  3.3  Article 1 is concerned with definitions. Articles 2 and 3 require Member States to designate contact points within their police forces and their judiciary. The contact points would be required to communicate to Europol and Eurojust a range of specified information in respect of any investigations which they are carrying out into any person or organisation listed in the Annex to 2001/931/CFSP. Under the original proposal, these duties were unqualified and appeared to override existing national law and the provisions of the Europol Convention[4]. The revised proposal (document (d)) makes it clear that these duties are to be carried out in accordance with national law and insofar as they are permitted by the provisions of the Europol Convention and the Eurojust Decision[5].

  3.4  Minor drafting changes have been made to Article 4 which now requires Member States 'where appropriate' to set up joint investigation teams. The duties on Member States under Article 5 to ensure that information which is communicated under Article 2 and 3 can also be exchanged between Europol and Eurojust, are now confined to information which is 'relevant'[6].

  3.5  Article 6, which requires Member States to deal urgently and as a matter of priority with mutual legal assistance requests relating to a person listed in the Annex, has remained unchanged. Article 7 formerly required that any piece of evidence seized or confiscated in the course of criminal investigations into such a person was to be made accessible or available immediately to the authorities of other Member States where similar investigations 'are being carried out or might be initiated'. The Article has now been amended to confine this duty to relevant information contained in such evidence. Moreover, the information is to be provided 'in accordance with national law and relevant international legal instruments' to 'interested' Member States.

The Government's view

  3.6  In his Explanatory Memorandum of 14 June, the Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth) explains that the Government is content with the revised version (document (d)), since it addresses the concerns it had expressed over the interests of national security and preventing any jeopardy to the success of a current investigation or the safety of individuals.

  3.7  The Minister points out that the revised version of Article 2 makes it clear that the information covered by the proposal is to be transmitted to Europol through the Europol National Units rather than direct from police services. The Minister also draws attention to the fifth paragraph of the preamble[7] which he describes as adequately addressing the Government's concerns about the need to include derogations for national security reasons, the safety of individuals and the security of operations, as well as concerns over the handling and transfer of information.

  3.8  The Minister also explains that Article 7 has been amended to refer to the "relevant information included" in evidence being passed on, rather than the evidence itself. The Minister describes this as "setting the more realistic goal of providing information concerning evidentiary material rather than the evidence itself". The Minister also points out that the revised form of Article 7 has the effect that the relevant information will go only to those Member States which have a particular interest, rather than to all Member States.

Conclusion

  3.9  We agree with the Minister that the problems which were raised by the earlier version of the proposal have been addressed in the current version. We note the express provision to the effect that information is to be communicated only in accordance with national law and only as permitted by the provisions of the Europol Convention.

  3.10  We note the revision which has been made to Article 7, and assume from this that unused prosecution material can be made available insofar as this is permitted under United Kingdom law. It does not appear to us to be necessary that the relevant information should have been used, or admissible, as evidence in criminal proceedings before it can be communicated under Article 7.

  3.11  We ask the Minister to confirm that our assumption on this point is correct, and we shall hold the documents under scrutiny pending his reply.


3  OJ No L 344 of 28.12.2001 p.93. Back

4  The Convention of 26 July 1995 on the establishment of a European Police Office, OJ No C316 of 27.11.1995, p.2.  Back

5  Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust. OJ No. L 63 of 6.3.2002, p.1. Back

6  Presumably, relevance is to be determined by the communicating State. Back

7  The relevant passage provides "Assistance will be provided in conformity with the national laws of the Member States, in particular those with regard to confidentiality of criminal investigations". Back


 
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