The EU legal framework Dr. Maria O’Neill

The Organisations Europol- 3 protocols in force 2007 (Europol’s Security Manual) Eurojust – not just for judges! OLAF – the European Anti-Fraud Office Frontex – intelligence led frontier policing (UK not a member) SitCen- the “military” approach to counter-terrorism Schengen/SIRENE – UK part member

The Functions Joint Investigation Teams Analysis Work Files (Europol) Cross border observations Hot pursuit Provisions (not UK) Controlled Deliveries Cross border covert investigations Cross border telephone and telecommunications intercepts

Europol - 3 recent amendments. All in force 2007. The “money laundering” protocol The “joint investigations teams” protocol The “Danish” protocol- many changes, also bringing in organised crime.

Europol 2 Operational agreements (involves exchange of personal data) with; Interpol, Norway, Iceland, USA, Canada, Switzerland, Croatia and Australia. (Need to look at the detail of the particular agreement). Strategic Agreements (no personal data exchange) with; Turkey, Russia and Colombia.

Data Security at Europol Article 25 Europol Convention 1995 as implemented by Council Act 26/02. Europol Security Manual Classifications: Europol 1 (UK confidential) Europol 2 (UK secret) Europol 3 (UK top secret)

Data Security at Europol 2 Under the control of the Europol Security Committee – Security Officer – manages the Security Unit of Europol – holds “security clearance to the highest level under the regulations applicable in the Member State of which he is a national”. NB counter-terrorism is a Europol activity.

Eurojust Says it is a “network of investigating and prosecuting magistrates”. However investigations are led by the police in the UK! – each member sate will second “in accordance with its legal system”, one of the following, “a prosecutor, judge or police officer of equivalent competence”. Article 2 Council Decision 2002/187/JHA

Eurojust 2 Has direct access to Schengen Information System/ SIRENE Has direct access to the Europol Information Systems, Has its own Security Committee and Security Rules, Has a Case management System: European Pool against Organised Crime (E-POC),

Eurojust 3 Can participate in Europol Analysis Work Files and is working on developing better access. Located in the same town as Europol, and the same building as the European Judicial Network in Criminal Matters (for criminal judges who hear cases).

Eurojust 4 Can support current investigations – to include legal back up, Can request the start of an investigation or prosecution, Can set up its own joint investigation team, Can allocate a case (both investigation and prosecution) to one jurisdiction rather than another,

Eurojust 5 Can co-ordinate investigations and prosecutions, Can request an improvement of co-operation between member states in conducting an investigation, Can forward requests for assistance from one member state to another- (n.b. if it is a police to investigating magistrate request).

OLAF – European anti-fraud office Focuses on protecting the EU’s budget = €129.2 Billion in 2008 (and Euratom’s). OLAF – Europol relationship via Europol’s Financial Crime Unit. Exchange of strategic and technical information Eurojust has a close relationship with OLAF.

OLAF 2 Many countries have direct police contacts. E.g. R of I: Revenue Commissioners, An Garda Síochána, and the Department of Agriculture, Food and Rural Affairs. UK Contacts with OLAF: HM Customs and Excise Serious Fraud Office (England, Wales & NI) No direct Scottish connection?

SitCen Counter-terrorism is either “policing” or “military” from an EU perspective. SitCen represents one arm of the EU’s counter-terrorism strategy – the other is located with the police and within Europol. SitCen is based within the Common Foreign and Security Policy (CFSP). Part of the CFSP is the EU Security and Defence Policy (ESDP).

SitCen 2 The ESDP focuses on counter-terrorism, WMD, and armies. It contains; The European Defence Agency, the EU Institute of Security Studies, the EU Satellite Centre,

SitCen 3 the Political and Security Committee (PSC), the European Military Committee (EUMC), European Union Military Staff (EUMS), and the Civilian Planning and Conduct Capability (CPCC).

SitCen 4 The CFSP runs the EU Counter – terrorism strategy. …… but counter-terrorism is ALSO dealt with by Europol, and within Police and Judicial Co-operation in Criminal Matters - different personnel, different structures. There is a permanent liaison officer posted from Europol to SitCen.

Schengen/SIRENE In use in the UK, but only for policing. Same approach being adopted by the R of I. Denmark mostly the same. Other EU member states also using Schengen/ SIRENE for “visas, asylum, immigration and other matters dealing with the free movement of” 3rd country nationals. The non-EU member states of Norway, Iceland and Switzerland may also be using it for illegal immigration etc.

The Functions Joint Investigation Teams Analysis Work Files (Europol) Cross border observations (not R of I) Hot Pursuit provisions (not UK or R of I) Controlled Deliveries (Europol Manual on Controlled Deliveries) Cross border covert investigations Cross border telephone and telecommunications intercepts

Cross border observations Article 40 Schengen Convention 1990 UK in, Republic of Ireland out. For “extraditable” offences,…. now also includes offences covered by the European Arrest Warrant.

Cross border observations 2 A request to cross the border must be sent to the “host” state’s authority. In the UK this was designated as the National Criminal Intelligence Service. Article 2 of Council Decision 2000/365/EC (now SOCA?) Conditions may be attached to this authority. Article 40.1 Schengen.

Cross border observations 3 Only specified police forces can cross borders. For the UK these shall be “officers from police forces in the United Kingdom and officers of Her Majesty's Customs and Excise.” Article 2 of Council Decision 2000/365/EC (not the intelligence services then?)

Cross border observations 4 Borders can be crossed without authority – “for particularly urgent reasons”. Article 40.2 Schengen. The authority (SOCA?) must be notified immediately (not the local police force? SCDEA?) Observation 1: a local Scottish police force can pursue across borders (but not to the Rep. of Ireland) but will not be notified if a Dutch or German police force is operating in its territory! (Perhaps this has been resolved within the UK structure?)

Cross border observations 5 Observation 2: Counter-terrorism activity is now a key EU policing issue, and since Council Decision 2003/725/JHA, is part of this framework. However the UK intelligence services, to whom this task is largely entrusted, cannot continue cross-border covert surveillance, although they would be considered as “police”/ ”competent authorities” for Europol activities... – due to the UK drafting of its own opt in provisions for Schengen …as agreed with other countries?

Cross border observations 6 (Observation 2 con.) The Intelligence Services can, however, use covert investigation provisions (assuming false identities) across borders! Under the EU Convention on Mutual Assistance in Criminal Matters 2000, (and obtain protection from the law enforcement authorities of the host state…..which have to be pre-agreed and notified to the host state).

Cross border observations 7 The observation must cease if the authority so requests. Must “obey the instructions of the local responsible authorities” Article 40.3.a.Schengen. “carry a document certifying that authorization has been granted” unless the crossing was for a particularly urgent reason. Article 40.3.b.Schengen. Carry proof of identity at all times, be able to prove that “they are acting in an official capacity”. Article 40.3.c.Schengen.

Cross border observations 8 Can carry their service weapons, unless specifically requested not to by the “host” member state. If they do carry them, they can only be used for legitimate self defence. Article 40.3.d.Schengen. Cannot enter private homes, and cannot enter “places not accessible to the public”. Article 40.3.e.Schengen.

Cross border observations 9 Cannot challenge or arrest a person under observation. Article 40.3.f.Schengen. Must report back to the authority (SOCA?) all operations in that territory. Article 40.3.g Schengen.

Cross border observations 10 Crossing borders without prior authorisation, in particularly urgent situations, only for specified criminal offences: (Note: how many of these are/ are always SOCA crimes?) Assassination, murder, [Serious offence of a Sexual nature] (Council Decision 2003/725/JHA ), arson,

Cross border observations 11 [counterfeiting and forgery of means of payment] (Council Decision 2003/725/JHA ), armed robbery and receiving of stolen goods, extortion, kidnapping and hostage taking, traffic in human beings,

Cross border observations 12 illicit traffic in narcotic drugs and psychotropic substances, breach of the laws on arms and explosives, use of explosives, illicit carriage of toxic and dangerous waste,

Cross border observations 13 [- serious fraud; - smuggling of aliens; - money laundering; - illicit trafficking in nuclear and radioactive substances;] (Council Decision 2003/725/JHA )

Cross border observations 14 - participation in a criminal organisation (defined in Council Joint Action 98/733/JHA); - terrorist offences (defined in Council Framework Decision 2002/475/JHA)]. (Council Decision 2003/725/JHA ). (There is no list of crimes that borders can be crossed with prior authorisation).

Cross border covert investigations Article 14 of the EU’s Convention on Mutual Assistance in Criminal Matters 2000. It is possible for a country to subsequently withdraw from this provision, after it coming into force. Not necessarily for extraditable offences. Properly trained under cover agents.

C.b. covert investigations 2 Reference to “officers” but not to “police”. Article 14.3. Prior consent of the host state is required. Covert investigations, to include the assumption of false identity, “will take place in accordance with the national law and procedures of the Member State on the territory of which the covert investigation takes place”. Article 14.3.

Covert investigations 3 Appropriate security measures will be taken to “ensure that the covert investigation is prepared and supervised and to make arrangements for the security of the officers acting under covert or false identity”.

Any questions? Observations? Dr. Maria O’Neill Lecturer in Law, University of Abertay Dundee, Bell Street, Dundee DD 1 1HG Scotland Tel: 01382 308421 E-mail:m.oneill@abertay.ac.uk