Module - EJTN 2013/CoPen Modules EN/… · Web viewImportantly, Europol can also provide assistance with logistics and in expertise (3). Exchange, sharing and analysis of information

MODULE 5 - POLICE COOPERATION - VERSION 3.0

The European Judicialtraining network With the support of the European Union

PROJECT DESCRIPTION

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Training organised by(name of training organiser)

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Based onthe standard training programme in judicial cooperation in criminal

matterswithin the European Union

Module 5POLICE COOPERATION

Version: 3.0 Last updated: 20.12.2012


This module is part of a standard training programme in judicial cooperation in criminal matters within the European Union (EU-Copen Training Programme).

The ‘programme’ as a whole is an educational training tool designed to facilitate the training of judicial authorities in the field of judicial cooperation in criminal matters within the European Union. The tool is primarily aimed at any national authority responsible for judicial training, for the purpose of developing specific training courses on the subject, as well as to any stakeholder involved in judicial cooperation as part of their day-to-day professional practice. It may also be used by anyone interested in this field.

The methodological approach of the ‘standard programme’ aims to provide authoritative information while also focusing on the practical aspects of the mechanisms of judicial cooperation.

This tool was originally developed based on two projects run in 2005-2006, and subsequently in 2009, by the Institute for European Studies (Free University of Brussels) and ECLAN (European Criminal Law Academic Network) with funding from the European Commission (under the AGIS programme and subsequently the ‘Criminal Justice’ programme) of the Ministry of Justice of the Grand Duchy of Luxembourg and the International University Institute of Luxembourg.

In 2012, the European Judicial Training Network, which has been involved in the Copen Training programme since it began, took over the project’s management and coordination. Version 3 (3.0) of the Copen Training tool is therefore the property of the European Judicial Training Network. Any comments regarding its content and any requests for information about Copen Training should be sent to [email protected], quoting Copen Training.

The main authors of version 3.0 are: Serge de Biolley, Gisèle Vernimmen and Anne Weyembergh. Veronica Santamaría and Laura Surano contributed to the previous versions.

How to use this document:

The ‘standard training programme in judicial cooperation in criminal matters’ training tool and all parts thereof are the property of the European Judicial Training Network. Its use is subject to the following conditions:

1. Its content and layout cannot be altered in any way, except:

- where space is explicitly provided for the insertion of data relating to training organised on the basis of this standard programme (organiser’s logo, date, place etc.)

- where space is explicitly provided for the insertion of data relating to the national situation of the Member State concerned

2. If the user feels that corrections or additions need to be made to the content of the tool or parts thereof, provided each of the following criteria is met:

- the additions or amendments must be accompanied by a foreword indicating the origin of these amendments or additions

- these additions and amendments must be notified to the project’s development team [email protected], quoting Copen Training.

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3. No section of the tool or its parts may be copied or separated from the tool as a whole without the express permission of the Institute for European Studies and of its authors.


WHAT’S NEW IN THIS VERSION?

This is the 3rd version of this Module. It takes into account:

- The entry into force of the Lisbon Treaty- Developments of the SIS II- The implementation of the ‘Prüm Decision’ (Decision 2008/615/JHA)- The implementation of the Swedish Framework Decision (Framework Decision

2006/690/JHA)- The new ‘EU policy cycle for organised and serious crime’- Developments of Europol

AIMS OF THIS MODULE

Most European police cooperation focuses on the prevention, prosecution and investigation of crime through the exchange of information and operational cooperation. Judicial officers engaged in judicial cooperation should therefore have at least a general awareness of the different facets of police cooperation.

This may be the starting point for launching an investigation or may lead to discovering links between investigations conducted in different Member States. This can occur where, for example, criminal analysis by Europol uncovers information that has an impact on the investigations and proceedings undertaken at national level.

Police cooperation may also be an effective resource for judicial cooperation. Police cooperation is more flexible, faster, and less formal than judicial cooperation.

Finally, police cooperation offers tools and channels that are indispensable to judicial officers: for example the SIS, which will, inter alia, make it possible to create an alert for a person against whom a European arrest warrant has been issued.

This Module does not aim to provide exhaustive training on police cooperation, but rather to identify the main aspects judicial officers need to know, particularly since they may encounter them during the judicial stage.

RELEVANT LEGISLATION


- Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985 Compendium B.2.1.

- Framework Decision 2006/960/JHA of 18 December 2006 Compendium B.7.6.- Decision 2008/615/JHA of 23 June 2008 Compendium B.7.7.- Decision 2009/371/JHA of 6 April 2009 Compendium B.7.8.- Decision 2003/170/JHA of 27 February 2003 Compendium B.7.5.


CONTENTS

1. Introduction.............................................................................................................................72. The exchange of information..................................................................................................9

2.1. The legal procedure for the exchange of information................................................92.1.1 Material scope...........................................................................................................102.1.2 Information concerned...............................................................................................102.1.3 Exclusion from use as evidence................................................................................112.1.4 Involvement of the judicial authority..........................................................................112.1.5 Grounds for refusal....................................................................................................122.1.6 Implementing the new legal framework.....................................................................12

2.2. Direct access to national databases (‘Prüm’ system)...............................................132.2.1 General comments....................................................................................................132.2.2 Direct access to vehicle registration files...................................................................142.2.3 Direct access to fingerprints records.........................................................................142.2.4 Direct access to DNA profile records.........................................................................15

3. Stakeholders and channels of police cooperation................................................................163.1. EUROPOL......................................................................................................................16

3.1.1 Fact sheet..................................................................................................................163.1.2 Introduction................................................................................................................163.1.3 Objective....................................................................................................................173.1.4 Competences.............................................................................................................173.1.5 Structure....................................................................................................................183.1.6 Europol’s reach..........................................................................................................213.1.7 Cooperation beyond the EU......................................................................................263.1.8 Conclusion.................................................................................................................27

3.2. The Schengen Information System (SIS)...................................................................273.2.1 Introduction................................................................................................................273.2.2 Territorial scope.........................................................................................................283.2.3 Structure....................................................................................................................283.2.4 How it works..............................................................................................................29

3.3. Interpol...........................................................................................................................333.3.1 Structure and functioning...........................................................................................333.3.2 Tasks and objectives.................................................................................................333.3.3 Operational action......................................................................................................34

3.4. Liaison officers.............................................................................................................363.5. Cooperation between financial intelligence units (FIUs)..........................................363.6. Specific cooperation in border areas.........................................................................373.7. Towards an effective and coherent EU strategy for combating serious and organised crime......................................................................................................................38

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1. Introduction

Before 1990, there was no common foundation for the legal and institutional framework governing cooperation between European police forces. This contrasted with the framework for judicial cooperation, which was determined as early as the 1950s through key conventions (the 1957 Extradition Convention and the 1959 Mutual Legal Assistance Convention). The status of police cooperation, which has for a long time taken place informally, is less clear.

Some of this cooperation takes place through the channel of Interpol, the outcome of a European initiative in the early the twentieth century that has since become a global organisation. Other work has taken place bilaterally or within defined regional frameworks (such as Benelux cooperation).

Work also took place at European level in the 1980s within the framework of Trevi. Trevi was not a channel for police cooperation, but rather a forum for discussing developments in police cooperation. Trevi paved the way for future developments, but did not directly give rise to any specific instrument.

By creating a legal framework for ‘European’ police cooperation, the 1985 Schengen Agreement and its subsequent implementation via the Schengen Convention of 19 June 1990 marked an initial turning point. The Schengen Convention contained such advances as establishing a general legal basis for the exchange of information, setting up the Schengen Information System (SIS) and the authorisation, under certain conditions, of cross-border surveillance and hot pursuit.

Although the scope of this legal framework was initially limited to 5 member countries, Schengen cooperation, at least with regards to police and judicial cooperation, gradually merged with the EU and today even includes non-EU countries (Switzerland, Norway and Iceland).

Police cooperation in the EU received a second important boost from the Europol Convention of 26 July 1995. The aim of Europol was not only to encourage bilateral cooperation between the States concerned, but also to enable a concerted response from all the Member States to the threat posed by organised crime, in particular by sharing, facilitating the circulation of, and analysing the information gathered.

In the 10 years following signature of the Europol Convention, EU work in the area of police cooperation focused on developing Europol (including the gradual enlargement of its mandate), developing the SIS and, police training.

Work on the Convention on the Future of Europe, the text of the Constitutional Treaty and, lastly, The Hague Programme of November 2004, all in the context of combating terrorism, gave fresh impetus to police cooperation. This fresh impetus mainly took the form of profound changes to both the exchange of information and to the development of an internal security strategy.

The entry into force of the Lisbon Treaty on 1 December 2009 did not significantly change the EU’s competences in the area of police cooperation, but did introduce drastic changes to the

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EU’s institutions of police cooperation. Please refer to Module 1 for more information on this subject. However, remember that the Lisbon Treaty entails that a large number of the EU’s instruments for police cooperation will now be adopted by the Council and by the Parliament under the co-decision procedure, that the Commission may require Member States to implement EU instruments (including, to some extent, instruments adopted before 2009) and that the ‘normal’ competences of the Court of Justice apply to all these instruments.

These drastic changes to the institutions have yet to have much impact, given the low number of new proposals. As at late 2012, the EU had not yet adopted any major instrument relating to police cooperation. The focus is on implementing existing law, particularly the ‘Prüm’ decision (Decision 2008/615/JHA, see below).

Lastly, it should be noted that joint investigation teams (see Module 4) are a tool for police cooperation and judicial cooperation.

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2. The exchange of information

Collecting, processing, managing, analysing and transmitting information are key elements of police work and most European police cooperation centres on these functions.

The first major undertakings focused on ways of sending information to contacts securely, and on information as an operational means of monitoring. Interpol and the Schengen system, for instance, offer secure systems for transmitting information from one State to another as well as ‘check’ or ‘alert’ systems. Liaison officers also play a role in the exchange of information. These initial undertakings were primarily at bilateral level.

The establishment of Europol, for multilateral cooperation, came later. Its focus is on sharing information with a view to analysing it at European level.

Police information became critically important in the European response to terrorism, particularly after the Madrid bombings of 11 March 2004. In The Hague Programme of November 2004, the Council adopted the ‘principle of availability’. The scope of this principle has never been clearly defined. However, its objective can be explained as follows: in the context of a criminal investigation, an investigator from State A who requires information located in State B should to be able to access this information under the same conditions (legal rules) and by the same means (if necessary, direct access to the database) as if they were an agent from State B.

Although the flow of information may sometimes be insufficient, this is not solely the result of legal or technical difficulties; the source of the problems is often the fact of dealing with multiple police forces and channels (and therefore multiple databases), a lack of reciprocal knowledge, as well as a lack of reflexive coordination. The attitude towards exchanging information may also vary widely from one State to the next.

2.1. THE LEGAL PROCEDURE FOR THE EXCHANGE OF INFORMATION

The exchange of information between the police services of different States has long taken place without a multilateral legal basis.

Article 39 of the Schengen Convention ( Compendium B.2.1.) offers general rule, for the first time. This is, however, limited to allowing information to be exchanged without really imposing requirements. Article 46 of the Schengen Convention also establishes a legal basis for the so-called ‘spontaneous’ transmission of information (that is, at the initiative of the State transmitting the information without a request having to made by the receiving State).

Framework Decision 2006/960/JHA of 18 December 20061 ( Compendium B.7.6) on simplifying the exchange of information replaces Articles 39 and 46 of the Schengen Convention and establishes more detailed and binding procedure, as regards both the obligation to transmit information and the time-limits. It constitutes an initial implementation of the ‘principle of availability’.

Decision 2008/615/JHA ( Compendium B.7.7.), which integrates the Prüm Treaty into EU law, goes further than Article 39 and Framework Decision 2006/960/JHA, since it provides for direct 1 OJEU L 386, 29 December 2006, p. 89.

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access by a national police authority to a national database of another Member State. It is, in a sense, a perfect vision of the principle of availability. However, it only covers fingerprints, DNA profiles and vehicle registration data, and various restrictions are placed on this direct access (see below).

2.1.1 Material scope

Article 39 does not place any limitations on material scope. The Framework Decision on simplifying the exchange of information is also broad in scope, but contains a ground for refusal making it possible not to transmit information when the offence justifying the request is punishable by a prison term of one year or less.

2.1.2 Information concerned

Whereas Article 39 did not provide any clarification regarding the information concerned, the Framework Decision on simplifying the exchange of information is more specific.

The determining criterion is the availability of the information. Information held by a law enforcement authority must be exchanged, as well as information that is held by another public authority or by a private individual and to which the law enforcement authority has access without having to take a coercive measure.

The most straightforward example is that of information found in a database held by the requested police or a database to which the latter has direct access. The Framework Decision also applies to information to which the police only have access following authorisation from a judicial authority.

The mention of coercive measures plays a decisive role in this procedure, since it makes it possible (it is for each Member State to make this choice) not to transmit information previously obtained by means of a coercive measure and always excludes information that has yet to be obtained by means of such a measure. ‘Coercive measure’ is not, however, given a conceptual definition, so how this is implemented may vary significantly from one State to another.

Article 39 and the Framework Decision on simplifying the exchange of information are, in effect, broadly applicable regarding the content of the requested information. This may therefore equally involve non-sensitive information, such as a number plate, or more sensitive personal data, such as whether a person is linked to criminal cases in the requested State.

2.1.3 Exclusion from use as evidence

Both Article 39 of the Schengen Convention and the Framework Decision stipulate that information obtained by requesting authorities may not be used as evidence. The exchange of information between police services takes place at a preliminary stage of the criminal investigation, where it is primarily a matter of ‘closing off avenues’ and guiding the inquiries, for example by ruling out certain suspects. In police jargon, this is information transmitted ‘for police use only’.

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That does not mean that the information cannot be brought to the attention of the judge leading the investigation. However, the information exchanged is not, at this stage, intended to be referred to the trial judge.

If, subsequent to transmission via police channels, it is found that the information is so important that it must be used as evidence, this information must be ‘validated’ via a judicial procedure (if appropriate, via a European evidence warrant where this is applicable – see Modules 6 and 7).

However, it is not necessary to use the channel of mutual legal assistance if the State transmitting the information has previously authorised its use as evidence2. Member States therefore have the option of authorising, without further explanation, the ‘judicial’ use of information transmitted by means of ‘police’ cooperation. It may be anticipated that such authorisation will be given for some categories of non-sensitive information in order to ease the burden on mutual legal assistance.

2.1.4 Involvement of the judicial authority

The scope of Article 39 is reduced by the fact that the exchange of information only has to take place if ‘national law does not stipulate that the request has to be made [...] via the judicial authorities’. National legislation banning all transmission of police information abroad because such information is linked to a criminal case and therefore under judicial supervision would consequently be legally compatible with Article 39. Aside from this extreme example, Article 39 allows for a wide range of possible solutions, depending on national laws.

As stated above, it was this restriction that the Framework Decision on simplifying the exchange of information primarily sought to relax.

Firstly , the fact that judicial authorisation is required can no longer, in itself, be an obstacle to the exchange of information through police cooperation. It is here that the Framework Decision most clearly overlaps with judicial cooperation. This does not mean, however, that judicial authorisation should be abandoned. Member States may retain judicial supervision of the exchange of information and apply ‘the same rules […] as in a purely internal case’ (Article 3(4)). But this supervision no longer requires following the mutual legal assistance procedure. It is therefore the police authorities that take the lead in the exchange of information. This contrasts with the procedure under Article 39, whereby judicial supervision in the requested State requires that requesting police authorities refer the matter to judicial authorities in their own State to initiate a mutual legal assistance procedure.

Secondly , the Framework Decision limits Member States’ margin of manoeuvre as regards cases where such prior judicial authorisation may be required. This cannot be the case unless the requested police authority would have had to obtain the same authorisation from its own judicial authority in a similar, purely domestic case. In other words, prior judicial supervision cannot be retained if the requested police authority has independent access to the requested information. A good example would be there the information is found in a police database or in a register to which the police have direct access.

2 Article 1.

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2.1.5 Grounds for refusal

If a request falls within this scope, the information must, in principle, be transmitted. This is not, however, an absolute rule and there are significant but exhaustive exceptions to the obligation. The first exception, the result of a compromise, is that national law may exclude from the scope information that is already in the possession of the police services but which was obtained by means of coercive measures. This choice is therefore left to Member States. The conceptual definition of coercive measure is also left to national law, which reduces the scope for harmonisation. The Framework Decision also contains conventional grounds for refusal relating to national interests and to protecting the ongoing investigation or the safety of an individual. It is possible to refuse to execute requests that appear to be manifestly disproportionate, which entail that supervision is retained in the requested State. Lastly, requests relating to minor offences may be refused.

2.1.6 Implementing the new legal framework

Guidelines for implementing Framework Decision 2006/960/JHA were adopted in late 20103. These contain, inter alia, national ‘fact sheets’ where each State sets out which data can be directly accessed by the police authorities and to which data the strict time limits of the Framework Decision apply.

An evaluation in late 2011 of the new legal framework’s implementation found mixed results4. The implementation of Framework Decision 2009/960/JHA was deemed unsatisfactory, since around one third of Member States had not yet transposed it. Where it had been transposed, practitioners believed that the impact was not readily visible. One reason for this is that in many cases the Framework Decision only reflects the level of cooperation already applicable in practice. Furthermore, day-to-day police cooperation takes place relatively informally, without the need for such a specific framework.

The existence of strict time limits in an urgent case are, however, considered useful in practice.

It could be concluded that the Framework Decision has the particular merit of establishing the legal procedures and indicating how far Member States are ready to go. It also clarifies the separation between police cooperation and judicial cooperation.

2.2. DIRECT ACCESS TO NATIONAL DATABASES (‘PRÜM’ SYSTEM)

Implementation of the principle of availability, as adopted by the European Council in The Hague Programme (November 2004), not only concerns the legal procedure for the exchange of information, but also direct access to national databases. The latter constitutes a very ‘pure’ application of the principle of availability, since direct access means that there are no further grounds for refusal.

Initial work took place outside the formal framework of the EU, under the Prüm Treaty of 27 May 2005, which, at its inception, brought together seven Member States (the Benelux countries, 3 EU Council doc. 9512/1/10.4 EU Council doc. 15278/11.

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France, Germany, Spain and Austria). Almost all articles of the Prüm Treaty relating to police cooperation, and in particular those concerning access to national databases, have been incorporated into EU law via the ‘Prüm Decision’ – Council Decision 2008/615/JHA of 23 June 2008 on the stepping up of cross-border cooperation (...)5 ( Compendium B.7.7).

Three types of information are covered, each with a specific access procedure.

2.2.1 General comments

The following limitations apply:The direct access takes place via a central contact point in each Member State, while there may also be a specific contact point for each category of data.Access is limited to a case-by-case search, which therefore excludes consultations for strategic purposes such as profiling.

Note that this case-by-case usage does not preclude carrying out various searches for long-standing cases: the interconnection of German and Austrian fingerprint and DNA profile records has enabled links between several ongoing cases in these two States to be established.

Finally, note that participation in the database access mechanism necessitates an evaluation of each State for each of the three categories of information. A State will only begin participating in direct access following a specific decision of the Council stating that the conditions have been met for that State.

2.2.2 Direct access to vehicle registration files

Access to vehicle registration files is the most extensive access under the Prüm system. This is truly direct access to the data, including personal data. This access is via the EUCARIS system.

As at 1 November 2012, the following countries were ‘interconnected’: DE, AT, ES, BE, FR, LU, NL, RO, SI, FI6.

Indicate here the current situation and arrangements concerning access to data relating to vehicle registrations from your Member State.

Note that access to data on vehicle registrations in order to identify perpetrators of road traffic offences is governed by another instrument, Directive 2011/82/EU7, which in turn is based on Decision 2008/615/JHA with respect to the technical procedures. This Directive will take effect

5 OJEU L 210, 6 August 2008, p. 1.6 EU Council doc. 5086/7/12 (English only). For more information, see the enclosed table.7 Directive 2011/82/EU of 25 October 2011 facilitating the cross-border exchange of information on road safety related traffic offences, OJEU L 288, 5 November 2011, p. 1.

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from November 2013, and will enable the mass identification of the perpetrators of road traffic offences committed in a country other than the country of registration.

2.2.3 Direct access to fingerprints records

Access to fingerprint records is more restricted than for vehicle registrations. Access is via a ‘hit/no hit’ system: this only tells the user whether a fingerprint is known in another Member State, and does not enable them to directly obtain the data on this fingerprint.

If consulting the records of another Member State gives rise to a ‘hit’, how can more information be obtained? The key question is whether it is necessary to use the mutual legal assistance channel or whether a request/response through police cooperation is possible. This question is discussed in section 2.1. of this module. Consider, however, that:

In theory, the mutual legal assistance channel is necessary if the data is intended to be used as evidence. In practice, this division is not always obvious. It is also possible to request the data through police cooperation and then, if the data proves to be useful as evidence, to ‘validate’ obtaining them in this way through an a posteriori mutual legal assistance request.Moreover, even if we assume that the data is not gathered for evidential purposes, the State that holds the data may require the use of mutual legal assistance channels if this data was originally gathered by means of a coercive measure.Finally, even if police cooperation is the chosen channel, approval from a judge may be required in the State where the data is held.

If police cooperation is the chosen channel, the State that holds the data must respond within 8 hours (in urgent cases) or within one week (in other cases)8.

The status of interconnections as at 12 October 2012 is shown in the enclosed table. The following countries are connected to certain others but not all are necessarily interconnected (see the table for further details): BG, CZ, DE, ES, FR, LT, LU, NL, AT, SI, SK.

Indicate here the current status and arrangements concerning access to data on fingerprints from your Member State.

2.2.4 Direct access to DNA profile records

As is the case for access to fingerprint records, access to DNA profile records does not entail access to the contents of the record but merely a ‘hit/no hit’ access. It only indicates whether a DNA profile is included in the records of another Member State.

8 Cf. Framework Decision 2009/960/JHA – see section 2.1. of this module.

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In theory, the specifications provided above regarding access in the case of a ‘hit’ for data relating to fingerprints are also applicable to access in the case of a ‘hit’ for data relating to a DNA profile. However, it appears that in most Member States, access to data on DNA profiles is so sensitive that the mutual legal assistance channel is required.

The status of interconnections as at 12 October 2012 is shown in the enclosed table. The following countries are connected to certain others but not all are necessarily interconnected (see the table for further details): BG, DE, ES, FR, LV, LU, NL, AT, RO, SI, SK, FI.

Indicate here the current status and arrangements concerning access to data on DNA profiles from your Member State.

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3. Stakeholders and channels of police cooperation

Police cooperation involves multiple channels and stakeholders. There is, to date, no binding rule, other than the rules that are specific to each of the channels and stakeholders, and the rules determining scope and competence, for choosing one channel or stakeholder over another.

Coordination work takes place at different levels. It should thus be noted that, in most Member States, the ENU (Europol National Unit), the NCB (Interpol National Central Bureau) and the SIRENE Bureau (Schengen Information System) are located together in the same premises in order to ensure coherent information exchange.

3.1. EUROPOL

3.1.1 Fact sheet

Founding instrument: Convention of 26 July 1995 on the establishment of a European Police Office (Europol Convention), as amended on a number of occasions (Compendium B.7.1). This Convention has now been replaced by Decision 2009/371/JHA of 6 April 20099 (Compendium B.7.8)

Date it became operational: 1 July 199910

Headquarters: The Hague, Netherlands

Website: www.europol.europa.eu

Europol headquarters in The Hague (© Europol)

Composition: around 650 employees at Europol headquarters, including national liaison officers

3.1.2 Introduction

Operational since 1999, Europol is a permanent body located in The Hague set up to assist national authorities in preventing and combating serious criminal offences linked to organised crime.

Europol’s main function is to make structured information relating to criminal investigations available to national authorities and to carry out strategic and operational analysis of this information. Europol also acts as a centre of expertise and, indirectly, as a channel for exchanging information between Member States.

9 OJEU L 121, 15 May 2009, p. 37.10 The Europol drugs unit began operating a few years earlier as a light interim version of Europol.

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This assistance may be provided in advance of the work of the investigating judge (the information provided by or via Europol may contribute to an investigation being opened), or during the investigation itself (Europol’s assistance may make it possible, for example, to highlight links with ongoing investigations in other Member States).

3.1.3 Objective

Europol’s objective is to improve the effectiveness of police cooperation by providing assistance to national police authorities.

Europol is not therefore a European ‘FBI’ with its own investigative powers. It acts in the context of criminal investigations, supervision of which is retained by Member States.

This objective of assisting national authorities is nonetheless highly important. It involves promoting the exchange and sharing of information and avoiding duplication of effort, due to the multiple authorities of different Member States involved in transnational cases. Nevertheless, Europol aims to gradually become more operational, in particular through participation in joint investigation teams.

3.1.4 Competences

Like Eurojust, Europol was designed to focus on serious, transnational and complex crime. The two organisations’ areas of competence are not identical in legal terms but, in most instances, cases submitted to one fall under the competence of the other, since the type of case and crime referred tends to be similar.

Europol’s competences fall within three different areas:

3.1.4.1 Material field of action: Until recently, Europol only had competence if there was evidence of the involvement of a criminal organisation in the case concerned. This condition was removed by the Europol Decision. In practice, organised crime remains Europol’s main, indeed sole, field of action, but it is no longer necessary to demonstrate, on a case-by-case basis, that this criterion has been met.The criterion that does remain, as in the Europol Convention, is that cases handled by Europol must concern specific offences. Its mandate in this area has been extended substantially over the years. It currently includes the following types of crime:

– organised crime– terrorism– unlawful drugs trafficking– illegal money laundering activities– crime connected with nuclear and radioactive

substances

– illegal immigrant smuggling– trafficking in human beings– motor vehicle crime– murder, grievous bodily injury– illicit trade in human organs and tissue

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– kidnapping, illegal restraint and hostage-taking

– racism and xenophobia– organised robbery– illicit trafficking in cultural goods, including

antiques and works of art– swindling and fraud– racketeering and extortion– counterfeiting and product piracy– forgery of administrative documents and

trafficking therein

– forgery of money and means of payment– computer crime– corruption– illicit trafficking in arms, ammunition and

explosives– illicit trafficking in endangered animal species– illicit trafficking in endangered plant species

and varieties– environmental crime– illicit trafficking in hormonal substances and

other growth promoters

3.1.4.2 ‘Temporal’ field of action

Europol may intervene at both the prevention stage and at the suppression stage. With regards to prevention, it should, however, be noted that Europol has no competence in the area of maintaining law and order. A case brought before Europol therefore needs to concern concrete facts.

3.1.4.3 ‘Territorial’ field of action: While not entirely identical, the competences of Europol are similar to those of Eurojust in this area. Europol usually only has competence if at least two Member States are involved11.

3.1.5 Structure

Europol’s structure is made up of a number of components:

a) The management board

This comprises one representative from each Member State and meets regularly (around once every two months), reflecting the fact that Europol is controlled by the Member States. It oversees the activities of Europol and its management by the Director. It takes some decisions on its own; the most important decisions must be endorsed by the EU Council.

b) The Director of Europol

The Director is, in brief, responsible for the day-to-day administration of Europol and implements the decisions taken by the Management Board. He or she is the organisation’s legal representative, prepares budgets and manages personnel. The current Director, appointed in 2009 on a four-year basis, is Rob Wainwright, who was previously head of the international department of SOCA (Serious Organised Crime Agency) in the United Kingdom.

11 It is also possible to refer cases involving a Member State and a third country to Europol: Europol may investigate offences committed mainly outside EU territory, provided that at least two Member States are ‘affected’. Like Eurojust, part of Europol’s remit is also forging preferential relationships with various third countries. Europol therefore concludes cooperation agreements, which may include the transmission of personal data.

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c) Europol personnel

Europol’s employees are appointed by the Director. They have their own status, but this is modelled on that of European civil servants. As at the end of 2011, Europol had 632 employees. Around 50% of Europol’s employees come from national police services and are recruited for a limited term of up to 9 years (rotation principle).

Almost all Europol employees are based at Europol’s premises, but it can also second its own liaison officers abroad. For example, Europol has two liaison officers in Washington and one liaison officer at Interpol.

d) Europol National Units (Article 4)

The Europol National Units (ENUs) are the interface between the national level and Europol. Each Member State must designate a single ENU within its law enforcement services. The ENU is usually multidisciplinary and comprises members of the main authorities concerned (police, customs, etc.). The Member States generally choose to streamline police cooperation by bringing together the Interpol national bureau, the SIS central authority and the ENU within the same unit or in the same location. The main task of the ENUs is to transmit information to Europol, as well as to verify and update this information. They must transmit this information at their own initiative where such information falls within Europol’s mandate. Transmission may also be reactive, that is, following a specific request from Europol. The ENUs are also responsible for making use of and disseminating information and analyses transmitted by Europol.

The ENU is the only liaison body between Europol and the competent national authorities. Information referred up to or down from Europol has to go via the ENU12.

Note that this rule relates to the transmission of information but does not preclude direct contacts between Europol and certain competent national authorities.

Indicate here the contact details of the ENU in your country

e) National liaison officers and bureaux at Europol (Article 5)

Each Member State seconds at least one liaison officer to Europol. There are, on average, four liaison officers from each Member State. They are grouped together in ‘liaison bureaux’ based 12 This rule was relaxed by the Protocol of 27 November 2003, but should not affect the work of judicial officers. While maintaining the central role of the ENU, under this amendment it is now possible to designate other competent authorities that may, if the Member State concerned decides to use this option, make direct contact with Europol. The ENU must always be informed about these contacts, but is no longer necessarily the only channel for transmitting the information. This amendment is primarily in the interests of combating terrorism and a commitment to facilitating the transmission of information from national intelligence services to Europol.19/41

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in the Europol building. The liaison officers are an extension of the ENU: contact between the ENU and Europol goes through them.

Liaison officers are, however, also involved in bilateral cooperation with their counterparts from the other Member States. As the liaison officers are based in the same building, they can exchange information with each other without it necessarily having to be transmitted to Europol (for example, because the case in question does not come under Europol’s mandate).

Indicate here the contact details of the ENU and the Europol liaison officer(s) for your country

Sch1_mod5_V10_europol

3.1.6 Europol’s reach

Europol mainly intervenes at the level of police information (1), but involvement in managing investigations is also provided for (2). Importantly, Europol can also provide assistance with logistics and in expertise (3).

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3.1.6.1 Exchange, sharing and analysis of information

Europol’s added value lies, above all, in its capacity to facilitate access to information and to analyse it in order to assist national authorities and investigators. This function can be summarised under three headings: exchanging information, providing information and analysing information.

3.1.6.1.1 Exchanging information: the liaison officers channel

Europol is a widely used channel for exchanging information. This function is indirect, since it is not actually Europol itself that is this channel, but rather the network formed of the national liaison officers based in the Europol building.

The liaison officers, who are based in the same building for their day-to-day work, forge preferential relationships founded on working together, which encourages mutual confidence and understanding.

Member States may therefore ask their Europol liaison officers to contact their colleagues from other Member States to obtain information, even if assistance is not sought from Europol itself13.

3.1.6.1.2 Providing information: the Europol information system

Information is provided via the Europol Information System (EIS), which has been operational since 2005. It is therefore a recent tool whose primary aim is to make it easier to link several cases. Data is inputted by the ENUs, which are subject to a real obligation (rather than merely an ability) to transmit information, but also directly by Europol, which can receive data from third countries, for example. The system contains data relating to objects (weapons, chemical substances) and personal data (relating to natural or legal persons). This data must, however, only relate to offenders or those suspected of having committed or preparing to commit an offence.

The EIS is accessible online to the ENUs, the liaison officers and to authorised Europol staff14.Added to on a massive scale, the EIS may become a powerful tool for frequent checks in serious organised crime cases.

Example

13 Information exchanged in this way may also have to be transmitted to Europol if it falls within the scope of the obligation laid down by the Europol Convention and Decision.14 Access may also be granted to other competent national services, but such access is limited to hit/no hit functionality. In there is a hit, the authority concerned must contact its ENU to obtain the information.21/41

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Conducting an investigation into drugs trafficking, the Austrian police suspect X of playing a coordinating role in the criminal organisation. By entering X’s personal data into the EIS, the Austrian ENU discovers that X is also a suspect in a similar investigation conducted by the Italian police. Following this information, the Austrian liaison officer will contact his Italian colleague in The Hague to initiate cooperation.

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By way of example, in late 2011, the EIS contained data on 183 240 objects and 41 193 individuals, and 111 110 searches were run through the system in the past year. The crime areas concerned were drug trafficking (25% of all objects), trafficking in human beings (23%), forgery of money (18%), robbery (10%) and fraud (5%)15.

3.1.6.1.3 Information analysis: analysis work filesThe aim of analysing information is to derive added value by sharing various data. This analysis function is mainly undertaken using Europol’s analysis work files.These are temporary computerised files created to analyse a specific criminal issue at the initiative of one or more Member States or of Europol.

Example

Italy requests the creation of an analysis work file on the trafficking of human beings from Central Asia.

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Each Member State may choose whether to participate in the analysis work file. An analysis group is set up. In 2007, 16 analysis work files were created at Europol, mainly in the complex sectors of financial crime and drug trafficking.

Example

France and Belgium decide to participate in the analysis work file, since, based on information provided by Italy, the French and Belgian police believe it is likely that one or more joint criminal networks are involved. The analysis group therefore comprises Italian, French and Belgian and Europol analysts.

15 Source: ‘Europol Review 2011’, available at www.europol.europa.eu.

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ex_mod5_V10_1.3

The participating States must add information to the analysis work file (they cannot, however, be obliged to do so). The analysis work file contains much broader and more sensitive information than the EIS, both with regards to individuals (it is not limited to offenders and suspects) and the types of personal data processed.

ExampleAs part of a case falling within the field of action of analysis work file F, the Belgian police monitor X, who is suspected of acting as a contact with prostitution networks, for several months. They encode data in the analysis work file regarding X, such as surname; first name; address; vehicle; places frequented; lifestyle; personality traits; identifying physical characteristics, etc.

The Italian police seize a mobile telephone during a search. The telephone is fitted with an anonymous prepaid card but, following contact with the telephone operator concerned, the Belgian police are able to draw up a list of the telephone numbers with which communications have taken place during the previous months. All these telephone numbers and their subscribers, if known, will be encoded in the analysis work file.

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After several months or years, depending on the quality and quantity of the data transmitted, the analysis work file may produce results. It is not only a matter of demonstrating that links exist between different cases but of bringing hidden characteristics to light. The results are translated into information that can be used by the investigators, such as:

revealing a modus operandi identifying the routes used by the criminal organisation the role played by certain individuals in the network offences committed other than those that justified opening the investigation, …

The involvement of the judicial authorities in creating and managing analysis work files varies from one State to another. In some Member States, participation in an analysis work file requires consent from the judicial authorities, and the information collection plan to be transferred into the analysis work file is determined with the competent judicial authority that will take part in analysing the results of the work file. Personal data included in an analysis work file must only be stored in this file for a limited period.

3.1.6.1.4 SIENA: establishing direct links between national databases and Europol.

The ‘SIENA’ platform is the latest of Europol’s key tools. It enables interconnection between Europol databases, information exchanged bilaterally by liaison officers at Europol, and national databases. This interconnection will, inter alia, automate the transmission of information to Europol. Eventually, it will also act as a platform for the exchange of information between

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databases in the Member States. SIENA enables a secure exchange of information between the various stakeholders, including in bilateral relations between Member States (via liaison officers) and relations with third countries.

More than 330 000 message were exchanged via SIENA in 2011.

3.1.6.1.5 Europol strategic analysis

Europol also has the task of carrying out strategic analysis, separately to specific investigations, in order to assist the Council and the Member States in determining their security policies.

Europol has produced an annual report on organised crime since 1993. Since 2006, this situation report has evolved into a threat assessment (‘OCTA’, which stands for ‘organised crime threat assessment’) that looks to the future. Once it has been produced by Europol using, inter alia, data collected by the national authorities, the OCTA is submitted to the Council. Based on the OCTA, the Council then produces the ‘working priorities for the fight against organised crime’. From 2013, the scope of the report will be expanded to serious crime, rather than only organised crime, and the report will become the SOCTA (‘Serious and Organised Crime Threat Assessment’). See below for the EU’s internal security cycle. The reports are published in two versions:

one is confidential and details cannot be published here but judicial officers may, if necessary, obtain it by contacting the national police authorities

the other, which is less detailed, is in the public domain and may be accessed on the Europol website (www.europol.europa.eu, ‘Publications’ section).

Each year, Europol also produces the EU terrorism situation and trend report: TE-SAT. This report is in the public domain, available in the ‘publications’ section of Europol’s website.

3.1.6.2 Europol’s involvement in managing investigations

Since the Protocol of 30 November 2002, Europol has been entrusted with competences more directly linked to managing investigations.

Europol may now ask national authorities to conduct or coordinate investigations in specific cases. Previously, Europol requests could only relate to the transmission of information. Europol is therefore granted a leading role based on its knowledge of crime phenomena acquired through its various activities. Note that Eurojust has been given the same competence.

Europol may also participate in joint investigation teams, usually in cooperation with Eurojust (see Module 4).

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3.1.6.3 Material, logistical and expert supportLastly, Europol significantly assists national authorities by providing the expertise it has acquired in certain areas (e.g. Euro counterfeiting), material resources (e.g. organisation of an operational coordination meeting at Europol with interpretation for the national authorities) and its experience in relations with third countries.Furthermore, a ‘European Cybercrime Centre’ will be established within Europol from 2013. This will act as a centre of expertise to support investigations in the Member States but will also play a role in educating and training.

3.1.7 Cooperation beyond the EU

In order to improve cooperation beyond EU borders, Europol fosters partnerships with third countries and international organisations and bodies. This enables Europol to play a strategic role and to focus on types of crime that transcend EU borders.

These partnerships are subject to the conclusion of agreements and may, in some cases, include the transmission of personal data. This list of countries and organisations with which Europol cooperates can be found below. The symbol ‘ ‘ means that Europol has concluded an operational agreement with the State or organisation concerned, which entails the possibility of exchanging personal data. For other States or organisations, Europol has only concluded a ‘strategic’ agreement.

Candidate countries:- Turkey, Croatia

Schengen partners- Iceland , Norway , Switzerland

Western Balkan countries:- Albania , Bosnia and Herzegovina, the former Yugoslav Republic of Macedonia

(FYROM) , Serbia, Montenegro. Countries of Eastern Europe- Moldova, Russian Federation, Ukraine.

Transatlantic partnership- Canada , United States of America

Miscellaneous:- Monaco , Colombia , Australia

Bodies not linked to the European Union:- ICPO-Interpol - World Customs Organisation - Office for Drug Control and Crime Prevention

Source: ‘Europol Review 2011’, www.europol.europa.eu

3.1.8 Conclusion

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At European level, judicial officers involved in judicial cooperation will generally liaise with Eurojust and/or the European Judicial Network, but contact with Europol may occur at various stages, for example:

a) the decision to open the investigation may be based on information transmitted by Europol (analysis work file);

b) investigators may approach Europol liaison officers as a channel for requesting certain information from other Member States;

c) searches of the EIS by investigators may lead to new developments in the investigation, for example by revealing links with other cases;

d) an investigation may be facilitated by insights gained from a Europol analysis work file;

e) if a matter is referred to Eurojust, it may consult Europol and request its assistance (and vice versa);

f) setting up a joint investigation team should lead to Europol employees being asked to participate in that team.

3.2. THE SCHENGEN INFORMATION SYSTEM (SIS)

3.2.1 Introduction

The Schengen Information System (SIS) makes it possible to create an alert, in a computerised system accessible at local level in the Schengen Area (for further information on the Schengen Area, see Module 1), concerning persons or objects, in order that officers carrying out a check on the persons or objects in question take a specific measure, such as arrest for the purposes of surrender (European arrest warrant).

The SIS was established by the Convention of 19 June 1990 implementing the Schengen Agreement (hereinafter, the Schengen Convention). It is one of the key measures compensating for the abolition of checks at internal borders in the Schengen Area.

The SIS is due to be replaced by the SIS II, but considerable difficulties are being encountered in setting it up. One of the objectives of the SIS II was its extension to include new States, but given the delays in setting up the new system, this extension has been achieved using an interim technical solution based on the existing system (SIS-one-for-all).

The SIS II should be operational in 2013. Most of the changes are technical, and judicial officers involved in judicial cooperation and the majority of law enforcement authorities should not be greatly affected by the transition from the SIS to SIS II. The SIS II does, however, introduce some substantial changes and will enable the use of biometric data. The legal basis for SIS II is in Council Decision 2007/533/JHA of 12 June 200716.16 OJEU L 205, 7 August 2007, p. 63.

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3.2.2 Territorial scope

As at 30 November 2012, the SIS could be accessed in the following countries: EU member countries of the Schengen area: Germany, Austria, Belgium, Denmark, Spain,

France, Greece, Italy, Luxembourg, Netherlands, Portugal, Sweden, Finland, Estonia, Latvia, Lithuania, Poland, Slovakia, Czech Republic, Hungary, Slovenia, Malta.

Non-EU member countries of the Schengen area: Iceland, Norway, Switzerland.

The following countries should have access soon17: EU countries that are future members of the Schengen area: Cyprus, Bulgaria and Romania EU countries not members of the Schengen area18: United Kingdom

Ireland has indicated its commitment to joining the SIS as regards data relating to criminal matters, but this process appears to have stalled.

3.2.3 Structure

The SIS consists of a central system located in Strasbourg (C-SIS). This system is complemented by national ‘mirror’ systems in each of the Member States (N-SIS). The national systems are copies of the central system.

The central system has a purely technical function. Information is not added to the SIS, nor its contents monitored, in Strasbourg. These tasks take place solely at national level. In other words, the central system is fed by data added into each of the national systems and copies of the central system, updated accordingly, are made in the national systems.

A single authority holds responsibility for the national system in each Member State. Only that authority is authorised to issue, modify or delete an alert in the SIS. That authority, known as the ‘SIRENE’ Bureau, is also responsible for exchanging additional information linked to an alert with the SIRENE Bureaux in the other Member States (see below).

Indicate here the SIS national central authority for your country

Lastly, note that Europol and Eurojust participate in the SIS.

3.2.4 How it works

17 The new wave of enlargement of the SIS is only due to take place when the SIS II comes into operation. Given the delays surrounding the SIS II, the Council decided to grant SIS access to all States ready to join the Schengen Area through a temporary technical solution known as ‘SIS-one-for-all’ (Conclusions of the Council of 4 December 2006). Access to the SIS is not automatic. For countries that require access as part of joining the Schengen Area, all conditions for joining must have been met. This involves a series of evaluations, for example concerning border controls.18The United Kingdom has requested to participate in the SIS regarding only the aspects of cooperation in criminal matters that we are concerned with here. See Module 1.27/41

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Types of alert: Each type of alert is determined by its object and its objective. The object is either a category of persons (for example, persons guilty or suspected of having committed an extraditable offence) or a specific material object (such as a stolen vehicle). The objective is the measure to be taken if the object of the alert is located or found. The following table lists the main alerts in criminal matters.

Reference Object Objective / measure to be taken

Article 95 CISA and Article 26 et seq. SIS II Decision

Persons guilty or suspected of an offence that may lead to extradition or to a European arrest warrant

Arrest for extradition purposes or execution of a European arrest warrant


Witnesses or persons summoned to appear in connection with criminal proceedings.Persons who are to be served with a criminal judgment or a summons to report in order to serve a penalty involving deprivation of liberty

Communication of data relating to the person (place of residence, etc.)


(Vehicle driven by a) person where there is evidence that an offence has been committed or will be committed

For discreet surveillance or specific checks (in particular, a search)


Material objects stolen, misappropriated or lost: motor vehicles, trailers and caravans, firearms, blank official documents, identity documents, vehicle registration certificates and number plates, securities and means of payment (credit cards, shares, etc.).Registered banknotes

For seizure or use as evidence (depending on the applicable instruments)

CISA = Convention of 19 June 1990 Implementing the Schengen AgreementSIS-II Decision = Decision 2007/533/JHA on the SIS IITab1_mod4_V10

Note that most of the alerts are not for the purposes of criminal proceedings, they are alerts concerning access to the territory.

Statistics (as at 1 January 2012)19: - 42 million alerts, of which 98% are for objects (of which 35 million are documents and

nearly 5 million are vehicles) and 2% are for people (900 000 people)20

- Of the 900,000 wanted person alerts in the SIS, 74% concern non-access to the territory.

- Of the alerts for persons for the purposes of criminal proceedings, or at least judicial proceedings, most are in order to locate them and serve them with a notice (86 000 persons, 41%) or because they are reported missing (53 000 persons, 25%). 35 000 persons (16%) are wanted for extradition purposes or on the basis of a European arrest warrant.

Data contained in the SIS: depending on the alert, the SIS contains the data necessary for identifying the person or material object, or for the measure to be taken. Some are mandatory and others optional. With the SIS II, the system will contain biometric data. Use of such data is

19 See EU Council doc 8281/12.20 This does not include the some 289 000 entries corresponding to aliases.

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initially only possible for confirming a person’s identity. The possibility of searching the SIS based solely on biometric data has not been ruled out, but has been deferred to a later date.

Issuing an alert: only the SIS central national authority is entitled to enter a new alert in the SIS. The decision to issue an alert is, however, taken by another authority. It is, for example, the judicial authority competent to issue a European arrest warrant that will take the decision to issue an alert for a person’s arrest and surrender

Execution of an alert: when, during a check, a competent authority of a Member State finds an object or person that is the subject of an alert, this is referred to as a ‘hit’ in the system. In the event of a hit, the competent authority must take the requested measure attached to the alert (arrest of the person, search of the vehicle, seizure of the object, etc.). How the ‘hit’ is followed up will depend on the applicable instruments

Access to the SIS: In general, the SIS is only accessed during a check concerning a person or object. This

may, for example, be a customs check, an identity check following a law enforcement operation or a road traffic check. Only the authorities with competence for these customs or police checks may access the SIS.

The value of access to the SIS, not only for checks but also for investigative purposes, is, however, clear. Judicial authorities have thus been granted access21. Partial access has also been granted to Europol and Eurojust, which do not have competence for carrying out checks22. In addition, the SIS II Decision states that the national authorities granted access to the SIS are no longer solely the authorities with competence for customs or police checks, but also the authorities with competence for requesting the issue of an alert. The State’s security agencies may therefore be included.

Indicate here the authorities with access to the SIS in your country

Role of the SIRENE Bureau: the SIRENE Bureau is responsible for the exchange of ‘supplementary information’. This may be information that must be sent at the time of the alert to supplement the standardised data contained in the alert in question. It also includes exchanges of information subsequent to a ‘hit’ (such as notifying the Member State issuing the alert of the fact that the vehicle in the alert has been searched and of the results of the search in question).

Indicate here the contact details of the SIRENE bureau for your country

21 Council Decision 2005/211/JHA of 24 February 2005 concerning the introduction of some new functions for the Schengen Information System, including in the fight against terrorism, OJEU L 68, 15 March 2005, p . 44.22 Ibid.29/41

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Practical example

- Alert request by a competent authority of State AAs part of a drug trafficking case, police in Marseilles (France) want to trace a vehicle with registration number XYZ. They request an alert for the vehicle in order for it to be searched.

- Verification and encoding by the SIRENE Bureau of State A- If appropriate, transmission of supplementary information via the SIRENE Bureaux.By way of supplementary information, the French SIRENE Bureau transmits the fact that the search is based on the suspected presence of heroin in the vehicle.

- Automatic updating of the C-SIS- Transmission of the alert to the N-SIS of the other Member States and validation of the

alert by the SIRENE Bureaux of the other Member States The alert is now operational throughout the Schengen Area.

- ‘Hit’ in Member State B and execution of the requested actionDuring a routine road traffic check, Barcelona police stop vehicle XYZ. The officer in question transmits the vehicle’s details to his information centre; having checked the national data base, the information centre informs the officer that the vehicle is the subject of an alert and that a search is required. The officer carries out the search but does not find any trace of drugs in the vehicle.

- Transmission of information about the ‘hit’ from the SIRENE Bureau of State B to the SIRENE Bureau of State A.

The Spanish SIRENE Bureau transmits the following information to the French SIRENE Bureau: place and time of the check, persons present in the vehicle, result of the search.

ex_mod5_euj_1.5For more information about the use of the SIS in connection with a European arrest warrant, see Module 8.

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3.3. INTERPOL23

The International Criminal Police Organization (ICPO) Interpol (hereinafter, Interpol) is a global organisation. It is nevertheless still frequently used in relations within the EU24.

Established in 1923, Interpol has its headquarters in Lyons (France) and is a purely intergovernmental body. The main principles guiding its tasks and functioning are laid down by its statutes, adopted in 195325. 187 countries were members of Interpol in 2009.

3.3.1 Structure and functioning

Interpol’s supreme governing body is its General Assembly, which consists of representatives from each of its 182 Member States. The General Secretariat is Interpol’s day-to-day working structure, and currently has between 450 and 500 employees, as well as representatives in more than 80 countries.

Interpol is the sum of its member countries and therefore relies on the National Central Bureaux (NCBs) these States have put in place (there is one NCB for each State). The NCBs carry out liaison work within the country concerned, with the other member countries and with the General Secretariat.

Indicate here the contact details of the NCB for your country

3.3.2 Tasks and objectives

Article 2 of Interpol’s Constitution defines its objectives in very general terms:

a) to ensure and promote the widest possible mutual assistance between all criminal police authorities within the limits of the laws existing in the different countries and in the spirit of the ‘Universal Declaration of Human Rights’; b) to establish and develop all institutions likely to contribute effectively to the prevention and suppression of ordinary law crimes.

It is the first paragraph that constitutes Interpol’s ‘core business’, the main function of which is to facilitate information exchange.

23 http://www.interpol.int/ 24Interpol also maintains a special relationship with Europe. The establishment of Interpol was, at the outset, a European initiative and its headquarters are in Europe. All its General Secretaries have been European, up until the current General Secretary, Ronald K. Noble, who is from the United States. 18 of the 25 Interpol Presidents have been European.25 http://www.interpol.int/en/Internet/About-INTERPOL/Legal-materials 31/41

http://www.interpol.int/fr/%C3%80-propos-d'INTERPOL/Documents-juridiques

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Interpol’s 2007 Annual Report mentions Interpol’s six priority crime areas: corruption, drugs and organised crime, financial and high-tech crime, fugitives, public safety and terrorism and trafficking in human beings26.

3.3.3 Operational action

Interpol’s main function is to put its various member countries in contact with each other to exchange police information.

The I-24/7 telecommunications network

Interpol and the NCBs are connected via a secure telecommunications network known as I-24/7, ensuring security and efficiency27. This network is the technical link between the NCBs, and between the latter and the information held at Interpol. It is via this network that police officers can send information to police officers abroad, create specific alerts or search and update the Interpol databases. The NCBs remain the anchor points of the system in each country, but the latter may decide to extend system access to other agencies.

The I-24/7 system enables the exchange of information from NCB to NCB, access to Interpol’s databases and access to national databases, but Interpol’s main strength lies in the alert function. This now takes place via the I-24/7 system, but has existed via other technical means since Interpol was established. This alert function is used extensively and largely explains Interpol’s success.

Interpol alerts

Interpol’s alert system is divided in different-coloured notices, depending on the objective sought. There are 7 notices28:

Red notice: to seek the arrest or provisional arrest of a person with a view to his/her extradition based on an arrest warrant

Blue notice: to collect additional information about a person’s identity or illegal activities in relation to a criminal investigation

Green notice: to warn about a person’s criminal activities and communicate police information if that person is likely to repeat these crimes in other countries

Yellow notice: to help locate missing persons, especially minors, or to help identify persons unable to identify themselves

Black notice: to seek information on the true identity of unidentified bodies Orange notice (since 2004): to warn police, public bodies and other international

organisations about potential threats from disguised weapons, parcel bombs and other dangerous materials.

Interpol-United Nations special notice: to seek groups and individuals who are subjects to UN sanctions against Al Qaeda and the Taliban.

26 http://www.interpol.int/content/download/768/6059/version/6/file/iaw2007.pdf27 All member countries were to be connected by 2005.28 http://www.interpol.int/en/News-and-media/Publications/Fact-sheets/International-Notices-system/

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It is for the NCB requesting an alert to specify which member countries will have access to it.

An alert request sent by an NCB must be checked and approved by the Interpol General Secretariat before the alert is disseminated. The time-limit for this procedure in urgent cases is 72 hours, which means that the time-limit in standard cases may be several days.

To avoid this delay, it is usual to pre-empt General Secretariat approval by sending a simple message to the other countries via I-24/7 warning them, for example in the case of a red notice, that a certain person is sought for arrest29. This is a simple transmission of information.

Lastly, Interpol’s framework only provides for dissemination of the alert and not its follow-up. Each country may, in addition, systematically filter and process the alerts it receives. In the case of red notices, for example, the country receiving the alert will usually decide only to input it into its domestic system if it has signed an extradition agreement with the country that issued the alert. Follow-up of a positive result in a State other than the State issuing the alert will thus depend on the applicable national law, the instruments in effect between the two countries concerned and the goodwill of the authorities involved.

Interpol alert and Schengen alertInterpol alerts and Schengen alerts largely overlap. Although SIS alerts are generally more effective, Interpol alerts are still frequently used by EU countries for two reasons:

firstly, the police authority of an EU country issuing an alert will, for evident reasons of efficiency, usually want this alert to be as wide as possible and not limited by the borders of the EU;

in addition, some EU Member States do not currently have access to the SIS (see below).

In the specific case of Interpol Red Notices, that is, notices issued for the purposes of arrest and extradition, note that these are not equivalent to a European arrest warrant between the EU Member States, unlike an alert under Article 95 of the Schengen Convention (see below)30. The Framework Decision of 13 June 2002 merely states that the European arrest warrant itself may be disseminated via Interpol. This is a transmission from one member country to another via the I-24/7 system.

3.4. LIAISON OFFICERS

Liaison officers are officers from a law enforcement service seconded by their Member State of origin to another Member State to facilitate police cooperation with the latter and, in particular, information gathering and exchange.

Use of liaison officers pre-dates the work undertaken at European Union level. This was primarily as part of bilateral initiatives. The network of liaison officers is much more extensive than that of liaison magistrates. Their rationale is similar: many obstacles to police cooperation

29 The check undertaken by the General Secretariat is a formal verification (e.g. completeness of the information) but also a check of the contents. The contents check focuses on compliance with Article 3 of Interpol’s Constitution, which aims to prevent Interpol being used for political purposes.30 Article 9.3 of the Framework Decision of 13 June 2002 on the European arrest warrant, op. cit. 33/41

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can be overcome through the intermediary of a liaison officer who is permanently resident in the country with which the cooperation is taking place, who may speak the language, knows the police and judicial structures and has developed interpersonal links with colleagues in the country in question.

The European Union has taken action, under Council Decision 2003/170/JHA of 27 February 2003, to provide a minimum framework for the use of liaison officers ( Compendium B.7.5.)31.

The aim of the EU’s intervention was to strengthen the network of liaison officers posted by the Member States or by Europol in various ways, particularly with regards to third countries, so that each State can benefit from the assistance of liaison officers seconded by the other Member States. Regular meetings of EU liaison officers in a third country are provided for: these are a key tool of EU cooperation with certain countries (such as Russia in combating organised crime). In addition, if a Member State does not have a liaison officer in a third country, the EU liaison officers seconded to that third country must gather information on serious criminal threats directed against that Member State.

3.5. COOPERATION BETWEEN FINANCIAL INTELLIGENCE UNITS (FIUS)

Financial intelligence units are set up in each Member State in the context of combating money laundering.

The European Union instruments adopted under the 1st pillar require certain professions to transmit intelligence relating to suspicious transactions (money laundering or financing terrorism) to the national FIUs. The primary task of the FIUs is to process this intelligence.

However, Council Decision 2000/424/JHA of 17 October 200032 supplements this framework by providing for the exchange of information between the FIUs of the different Member States, which therefore represent a preferential channel for exchanging information in the areas of money laundering and financing terrorism.

Indicate here the contact details of the FIU for your country

3.6. SPECIFIC COOPERATION IN BORDER AREAS

31 Council Decision 2003/170/JHA of 27 February 2003 on the common use of liaison officers posted abroad by the law enforcement agencies of the Member States. This Decision repeals Joint Action 96/602/JHA. It was amended and supplemented by Decision 2006/560/JHA ( Compendium B.7.5b)32 OJEU L 271, 24 October 2000, p. 4.

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As might be expected, it is in border areas that police and judicial cooperation is most significant, at least in terms of the number of cases. Specific modes of cooperation have been established in these areas, sometimes also acting as a test bed for subsequent extension33.

It is not possible to go into detail about these forms of cooperation, since they vary depending on the Member States concerned. There is no binding European framework34, except of course that they must go at least as far as permitted by the general rules on police cooperation (such as the rules on cross-border surveillance and hot pursuit under the Schengen Convention, see Module 7).

We simply mention that, increasingly, this cooperation takes the form of establishing ‘police and customs cooperation centres’ (PCCCs), located in the border area in question, where police and customs officers from the various Member States concerned are based in the same building.

These PCCCs may cover more than two countries, as is the case for Luxembourg’s PCCC, which brings together Belgian, Luxembourg, German and French officers.

These forms of cooperation may include particularly flexible mechanisms for exchanging information (since each officer has access to their national databases and all officers are grouped together in the same building), joint patrols and joint assessments of criminal activity in the border area.

Enter here useful information regarding specific cooperation in the border areas of your State.

3.7. TOWARDS AN EFFECTIVE AND COHERENT EU STRATEGY FOR COMBATING SERIOUS AND ORGANISED CRIME

The EU is developing a ‘policy cycle on organised and serious crime’, which is based on the intelligence-led policing method. Originating in a number of Anglo-Saxon countries in the 1980s, this method aims to guide policing on the basis of a cycle in which the collection (on a large or smaller scale) and analysis of information is presented as a starting point for a better understanding of the phenomenon, for identifying priority areas and taking operational measures. Increasingly widespread at national level, this method is also gradually becoming established at European level.

33 Such is the case, for example, for rules on cross-border surveillance and hot pursuit that have existed since 1962 in the cooperation treaty between the Benelux countries and were subsequently included in the Schengen Convention.34 A proposal submitted by the European Commission aimed to establish a minimum framework for these border areas shared by two EU Member States (Proposal for a Council Decision on the improvement of police cooperation between the Member States of the European Union, especially at the internal borders and amending the Convention implementing the Schengen Agreement, COM(2005)317). However, negotiations have stalled. 35/41

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The cycle, which lasts four years, is based on Europol’s SOCTA (Serious and Organised Crime Threat Assessment) report35. This report is sent to the Standing Committee on Internal Security (COSI), which analyses the report and proposes that the Council identify certain priorities. These priorities are adopted by the Council in April or June. For example, the priorities identified by the Council in its June 2011 conclusions were as follows (EU Council doc 11050/11): - Weaken the capacity of organised crime groups active or based in West Africa to traffic

cocaine and heroin to and within the EU- Mitigate the role of the Western Balkans, as a key transit and storage zone for illicit

commodities destined for the EU and logistical centre for organised crime groups, including Albanian-speaking organised crime groups;

- Weaken the capacity of organised crime groups to facilitate illegal immigration to the EU, particularly via southern, south-eastern and eastern Europe and notably at the Greek-Turkish border and in crisis areas of the Mediterranean close to North Africa;

- Reduce the production and distribution in the EU of synthetic drugs, including new psychoactive substances;

- Disrupt the trafficking to the EU, particularly in container form, of illicit commodities, including cocaine, heroin, cannabis, counterfeit goods and cigarettes;

- Combat against all forms of trafficking in human beings and human smuggling by targeting the organised crime groups conducting such criminal activities in particular at the southern, south-western and south-eastern criminal hubs in the EU;

- Reduce the general capabilities of mobile (itinerant) organised crime groups to engage in criminal activities;

- Step up the fight against cybercrime and the criminal misuse of the internet by organised crime groups.

These priorities therefore guide the actions of European stakeholders (the Council’s working groups, Eurojust, Europol, Frontex) and should also guide national priorities. Each priority is the subject of a Multi-Annual Strategic Plan (MASP) prepared by the COSI, and each MASP in turn gives rise to Operational Action Plans (OAPs). Finally, the OAPs are implemented through projects known as ‘EMPACTs’ (European Multidisciplinary Platform Against Criminal Threats)36.

In addition to threat analysis, identifying priorities and implementation, the cycle entails evaluation. The priorities’ implementation is reviewed in an annual evaluation report and a final evaluation report at the end of the four-year cycle.

The COSI plays a central role in this process within the Council: it was established in 2010 under the Lisbon Treaty37, and replaced the former ‘Police Chiefs Task Force’.

35 Note that the first SOCTA report is not released until early 2013. But an annual report on organised crime has been produced by the EU since 1994. Since 2002, it has been produced by Europol and evolved in 2006 from a simple snapshot of criminal activity to a threat analysis, becoming the OCTA (Organised Crime Threat Assessment). It will be expanded in 2013 to become the SOCTA (Serious and Organised Crime Threat Assessment): this will go beyond the strict conceptual and legal framework of organised crime to include types of serious crime that are not necessarily committed as part of a criminal organisation. Note that the French translation of the scope of the Europol report and of the cycle in general is erroneous: it refers to a report and a cycle concerning ‘serious organised crime’, thus limiting its scope to the most serious forms of organised criminal activity, even though the aim was to cover both organised crime and serious, non-organised crime. The SOCTA, the first version of which will be produced in early 2013, will be published every four years, with an interim report after two years.36 EMPACT projects are the successors of the so-called COSPOL projects.37 Article 71 of the Treaty on the Functioning of the EU.

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Indicate here who represents your State on the COSI and which EMPACT projects your country is participating in.

How are the judicial authorities involved in this exercise?

The judicial authorities’ involvement is necessary, although the degree of their involvement will inevitably vary depending on the national structure and above all the relationship between the police and the public prosecutor.

This involvement of the judicial authorities in the EU Internal Security Strategy takes place or may take place at three levels:- national judicial authorities’ participation in the COSI: although it is usually the police

authorities that represent the Member States within the COSI, many Member States have established coordination mechanisms for the involvement of prosecutors, for example, in defining national positions within the COSI;

- the implementation of the priorities identified by the Council and the implementation of the EMPACT projects, in particular, will only really be effective with the involvement of the judicial authorities;

- Eurojust participates in the policy cycle, both before – when preparing the SOCTA and identifying priorities, since Eurojust participates in the COSI – and afterwards, since the priorities identified by the Council also guide the action of Eurojust;

- The Consultative Forum of Prosecutors General, which is overseen by Eurojust, aims to ensure national public prosecutors are involved in this strategy and in the work of the COSI.

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Annex – Status of interconnections on the basis of Decision 2008/615/JHA (‘Prüm’) – Date updated: 12 October 2012

Source: EU Council Doc. 5086/7/12. Refer to the guide on accessing the documents to obtain an update, if required, or contact the competent authorities in your Member State.

a) Vehicle registrations

VRD operational data exchange (27/10/2011)BE BG CZ DK DE EE EL ES FR IE IT CY LV LT LU HU MT NL AT PL PT RO SI SK FI SE UK

BE xBG xCZ xDK xDE xEE xEL xES xFR xIE xIT xCY xLV xLT xLU xHU xMT xNL xAT x

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PL xPT xRO xSI xSK xFI xSE xUK x

b) Fingerprints

FP operational data exchangeBE BG CZ DK DE EE EL ES FR IE IT CY LV LT LU HU MT NL AT PL PT RO SI SK FI SE UK

BE xBG xCZ xDK xDE xEE xEL xES xFR xIE xIT xCY xLV xLT xLU xHU x

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MT xNL xAT xPL xPT xRO xSI xSK xFI xSE xUK x

c) DNA profiles

DNA operational data exchangeBE BG CZ DK DE EE EL ES FR IE IT CY LV LT LU HU MT NL AT PL PT RO SI SK FI SE UK

BE xBG xCZ xDK xDE xEE xEL xES xFR xIE xIT xCY x

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LV xLT xLU xHU xMT xNL xAT xPL xPT xRO xSI xSK xFI xSE xUK x

The contents and opinions expressed herein are solely that of the EJTN, and the European Commission cannot be held responsible for any use that may be made of these contents and opinions.

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