Tag Archives: Fight against crime

Stepping up cross-border cooperation

Leave a reply

Stepping up cross-border cooperation

Outline of the Community (European Union) legislation about Stepping up cross-border cooperation

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Police and customs cooperation

Stepping up cross-border cooperation (Prüm Decision)

Document or Iniciative

Council Decision 2008/615/JHA of 23 June 2008 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime.

Summary

The purpose of this decision is to step up cross-border police and judicial cooperation between European Union (EU) countries in criminal matters. In particular, it aims to improve the exchanges of information between the authorities responsible for the prevention and investigation of criminal offences. The decision sets out provisions with regard to:

  • the automated access to DNA profiles *, dactyloscopic data * and certain national vehicle registration data;
  • supply of data in relation to major events;
  • supply of information in order to prevent terrorist offences;
  • other measures for stepping up cross-border police cooperation.

Establishment of national databases and automated access to data

EU countries are to establish national DNA analysis files for the purpose of investigating criminal offences. Reference data, consisting of the non-coding part of the DNA * and of a reference number that does not enable an individual to be identified, must be made available to other EU countries to carry out automated searches *. These searches are performed via national contact points by comparing DNA profiles, but only on the basis of individual cases and in a hit/no-hit * manner. If the search provides a match, the national contact point carrying out the search receives the reference data in an automated manner. If no profile is found for a particular individual who is under investigation or against whom criminal proceedings have been brought, the requested EU country may be obliged to establish a DNA profile for that individual.

EU countries must also make available reference data from the national automated fingerprint identification systems (AFIS). For this purpose, the reference data will consist only of dactyloscopic data and a reference number. The searches are carried out by comparing dactyloscopic data and, similarly to DNA searches, only in individual cases on a hit/no-hit basis. Confirmation of the match is conducted by the national contact point of the requesting EU country. Supply of further available personal data for matching DNA or dactyloscopic data and other information relating to the reference data is governed by national law, including the mutual legal assistance (MLA) in the requested EU country.

The national contact points shall also be given access to certain national vehicle registration data via automated online searches. These searches may only be conducted with a full chassis or registration number.

Supply of data in relation to major events

In relation to any major events that have a cross-border dimension, EU countries must provide each other non-personal data via their national contact points, as required for the purpose of preventing criminal offences and maintaining public order and security. Personal data may be supplied only if the data subjects are considered a threat to public order and security or if it is believed that they will commit criminal offences at the events. However, this data may only be used in relation to the event it was provided for and must be deleted once it has served its purpose, but no later than a year after it was supplied.

Supply of information to fight terrorism

For the purpose of preventing terrorist offences, but only in individual cases and to the extent required by the conditions leading to the supposition that criminal offences will be committed, EU countries may provide the following data to each other via the national contact points:

  • surname and first names;
  • date and place of birth;
  • description of the conditions leading to the supposition that criminal offences will be committed.

The country providing this data may impose certain binding conditions on the receiving country for the data usage.

Other measures for enhancing cross-border police cooperation

EU countries may effectuate joint patrols and other joint operations to prevent criminal offences and to maintain public order and security on a given EU country’s territory. In such cases, designated officers and officials from the seconding country participate in the hosting country’s operations. The seconding officers may be conferred executive powers, or they may be allowed to exercise their executive powers, but only under the guidance and in the presence of the host officers. The competent authority of the host country is responsible for the command and actions of the seconding officers.

With regard to mass gatherings and other comparable major events, disasters and serious accidents, EU countries are to provide mutual assistance to each other. This assistance should consist of information exchanges, coordination of police measures and contribution of material and physical resources.

An EU country must provide assistance and protection to the other country’s officers on duty, which is equivalent to that provided for its own officers.

Provisions on data protection

EU countries must guarantee that personal data processed according to this decision is protected by their national laws. Only the relevant competent authorities may process personal data. They must ensure the accuracy and current relevance of the data. Steps must be taken to rectify or delete incorrect data or data that was supplied when it should not have been. Personal data must be deleted if no longer needed for the purpose it was made available or if the storage time, as provided by national law, has expired.

The relevant authorities must take technical and organisational measures to protect personal data against destruction, loss, unauthorised access, alteration or disclosure. For the purpose of verifying the permissibility of the non-automated processing of personal data, this processing must be logged. Similarly, the automated processing of personal data must be recorded. The independent data protection authorities in EU countries are responsible for the legal examinations of the processing of personal data.

Any individual has the right to information on the data that has been processed in relation to his/her person, including information on the origin of the data, the recipients of the data and the purpose and legal basis for the processing of the data. The individual may request corrections to or the deletion of inaccurate or unlawfully processed data. If the individual’s rights with regard to data protection have been violated, he/she may lodge a complaint with an independent court or a tribunal and claim for damages or other legal compensation.

Background

The conclusions of the Tampere European Council of October 1999 asserted the need to enhance the exchange of law enforcement information between EU countries, which was further confirmed by the Hague Programme of November 2004.

The Prüm Treaty of 27 May 2005 on the stepping up of cross-border cooperation, particularly on combating terrorism, cross-border crime and illegal migration, signed between Belgium, Germany, Spain, France, Luxembourg, the Netherlands and Austria, lays down procedures for more efficient exchanges of information in the framework of criminal investigations. This decision aims to incorporate the provisions of that Treaty into the EU legal framework.

Key terms used in the act
  • Dactyloscopic data: fingerprint images, images of fingerprint latents, palm prints, palm print latents and templates of such images that are stored and dealt with in an automated database.
  • Non-coding part of DNA: chromosome regions that are not expressed genetically.
  • DNA profile: a letter or number code that represents a set of identification characteristics of the non-coding part of an analysed human DNA sample.
  • Automated searching: an online access procedure for consulting the databases of one, several, or all of the EU countries.
  • Hit/no-hit procedure: in this procedure the parties grant each other limited access to the reference data in their national DNA and fingerprint databases and the right to use these data to conduct automated checks of fingerprints and DNA profiles. The personal information related to the reference data is not available to the requesting party.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Decision 2008/615/JHA

26.8.2008

26.8.2009
(26.8.2011 for Chapter 2 provisions)

OJ L 210 of 6.8.2008

Related Acts

Council Decision 2008/616/JHA of 23 June 2008 on the implementation of Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime [Official Journal L 210 of 6.8.2008].

This decision provides the administrative and technical provisions that are indispensable for implementing Decision 2008/615/JHA. The focus is especially on the automated exchanges of DNA, dactyloscopic and vehicle registration data, as well as on other forms of cooperation. The technical provisions are set out in the annex to the decision.

Council Decision 2010/482/EU of 26 July 2010 on the conclusion of the Agreement between the European Union and Iceland and Norway on the application of certain provisions of Council Decision 2008/516/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime and Council Decision 2008/616/JHA on the implementation of Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, and the Annex thereto [Official Journal L 238 of 9.9.2010].

Defining the facilitation of illegal immigration

Leave a reply

Defining the facilitation of illegal immigration

Outline of the Community (European Union) legislation about Defining the facilitation of illegal immigration

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Free movement of persons asylum and immigration

Defining the facilitation of illegal immigration

Document or Iniciative

Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence.

Summary

With a view to creating an area of freedom, security and justice, the European Union (EU) must take measures to combat the aiding of illegal immigration. To this end, EU countries’ legal provisions regarding such offences must be harmonised.

Consequently, this directive provides a common definition for the “facilitation of illegal immigration”, thus improving the application of the penal framework for preventing the facilitation of illegal immigration.

Infringements

The directive defines the following as infringements:

  • assisting intentionally a non-EU country national to enter or transit through the territory of an EU country, in breach of laws;
  • assisting intentionally, and for financial gain, a non-EU country national to reside in the territory of an EU country, in breach of laws;
  • instigating, assisting in or attempting to commit the above acts.

EU countries must adopt effective, proportionate and dissuasive sanctions for these infringements. However, for the first above infringement, where the aim is to provide humanitarian assistance EU countries are not obliged to impose sanctions.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Directive 2002/90/EC

5.12.2002

5.12.2004

OJ L 328 of 5.12.2002

Penal framework for preventing the facilitation of illegal immigration

Leave a reply

Penal framework for preventing the facilitation of illegal immigration

Outline of the Community (European Union) legislation about Penal framework for preventing the facilitation of illegal immigration

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Free movement of persons asylum and immigration

Penal framework for preventing the facilitation of illegal immigration

Document or Iniciative

Council Framework Decision 2002/946/JHA of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence.

Summary

Common action between European Union (EU) countries in the fields of police and judicial cooperation in criminal matters is necessary for the creation of an area of freedom, security and justice. In this context, EU countries should also take measures to prevent the aiding of illegal immigration. To this end, this framework decision establishes minimum rules for penalties, liability of legal persons and jurisdiction.

Penalties

The directive defining the facilitation of illegal immigration sets out the infringements for which EU countries must adopt effective, proportionate and dissuasive criminal penalties that may include extradition. These penalties may be supplemented by other measures, such as:

  • confiscation of the means of transport;
  • prohibition to practice the occupational activity in which the offence was committed;
  • deportation.

Certain infringements committed for financial gain must be punishable by custodial sentences with a maximum sentence of not less than eight years, if they were committed as part of activity of a criminal organisation or if the lives of the subjects of the offences were endangered.

Liability of legal persons

Legal persons must be held liable for infringements relating to the aiding of illegal immigration committed for their benefit by any person that has power of representation of or authority to take decisions on behalf or to exercise control within the legal person. If such a person neglects to exercise supervision or control over a person under the authority of the legal person who commits an infringement, the legal person must also be held liable.

EU countries must adopt sanctions for legal persons that are effective, proportionate and dissuasive. These must include criminal or non-criminal fines and may include other sanctions, such as:

  • exclusion from public benefits;
  • temporary or definitive ban on commercial activities;
  • a judicial supervision or dissolution measure.

Jurisdiction

EU countries must ensure that their jurisdiction applies to infringements committed in their territory. They may decide whether they apply their jurisdiction in cases where the offence is committed by one of their nationals or for the benefit of a legal person established in their territory. However, if an EU country does not extradite its own nationals, it must ensure that its jurisdiction applies to infringements committed by its nationals outside of its territory.

When an EU country becomes aware of infringements breaching another EU country’s law on the entry and residence of aliens, it must communicate this information to the country concerned. If an EU country requests another EU country to prosecute such infringements, it must provide the latter with an official report or certificate describing the provisions of its law that were breached.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Framework Decision 2002/946/JHA

5.12.2002

5.12.2004

OJ L 328 of 5.12.2002

Related Acts

Report from the Commission of 6 December 2006 based on Article 9 of the Council Framework Decision of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence [COM(2006) 770 final – Not published in the Official Journal].

Decision establishing Eurojust

Leave a reply

Decision establishing Eurojust

Outline of the Community (European Union) legislation about Decision establishing Eurojust

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Fight against terrorism

Decision establishing Eurojust

Document or Iniciative

Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime [See amending act(s)].

Summary

In order to step up cooperation in the fight against crime, the Tampere European Council decided (in point 46 of its conclusions) to set up a unit called Eurojust, with the objective of coordinating the activities carried out by national authorities responsible for prosecution. Several documents were presented on this subject during the year 2000:

  • an initiative of the Federal Republic of Germany;
  • an initiative of the Portuguese Republic, the French Republic, the Kingdom of Sweden and the Kingdom of Belgium;
  • a communication by the Commission to clarify its position on the setting up of Eurojust.

Subsequently, at the Intergovernmental Conference held in Nice in December 2000, the Heads of State and Government decided to amend Article 31 of the Treaty on European Union (EU), introducing a reference to, and a description of, Eurojust’s tasks. At the Laeken European Council in December 2001, Member States decided (in point 57 of the Council conclusions) that, pending a decision on the location of the headquarters of certain agencies, Eurojust would have its provisional headquarters in The Hague. At the December 2003 European Council, Member States decided that Eurojust would be headquartered in The Hague definitively.

Composition, competencies and tasks of Eurojust

This decision establishes Eurojust as a body of the Union with legal personality. Each Member State must appoint a national member to Eurojust headquarters: a prosecutor, judge or police officer (the latter must have competencies equivalent to the judge’s or the prosecutor’s). These national members are to be assisted by deputies and assistants. They are all subject to the national law of the Member State that appointed them. The length of the term of office of national members is a minimum of four years. The appointing Member State may renew the term. It also decides on the nature of the judicial powers conferred on its national representative. However, national members are to be granted at least certain ordinary powers, as well as other powers to be exercised in agreement with the competent national authority or in urgent cases, as defined in the decision.

Regarding investigations and prosecutions (concerning at least two Member States) in relation to serious crime, Eurojust has competence for:

  • promoting coordination between the competent authorities of the various Member States;
  • facilitating the execution of requests and decisions relating to judicial cooperation.

Eurojust’s competence covers, inter alia, the types of crime and offences for which Europol has competence at all times.

An On-Call Coordination (OCC) is to be established with one representative from each Member State and with a contact point at Eurojust. It is to act on a 24-hour/7-day basis, so that Eurojust may fulfil its tasks at all times.

Eurojust may fulfil its tasks through one or more of the national members or as a College. Eurojust may ask the authorities of the Member States concerned, inter alia, to:

  • undertake an investigation or prosecution;
  • set up a joint investigation team;
  • take special or other investigative measures.

The national authorities are to respond to these requests without delay.

The College issues non-binding opinions in cases where two or more national members are unable to resolve conflicts of jurisdiction as well as where competent authorities report recurrent refusals for, or other difficulties relating to, judicial cooperation.

The Commission, which is fully associated with the work of Eurojust, will jointly agree upon the necessary practical arrangements with Eurojust.

Each Member State is to appoint one or more national correspondents for Eurojust. Each Member State is also to set up a Eurojust national coordination system to coordinate the work of the Eurojust national correspondents, Eurojust national correspondent for terrorism matters, European Judicial Network national correspondent and contact points, as well as the national members or contact points of the Network for Joint Investigation Teams and representatives of Networks for War Crimes, Asset Recovery and Corruption.

Personal data

In order to realise its objectives, Eurojust must be able to exchange any relevant data with the competent authorities. To this end, the application of the principles of the Council of Europe Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data must be guaranteed.

Eurojust may only process data on persons who are suspected of having committed, or have been convicted of, an offence for which Eurojust has competence, as well as on victims and witnesses. The types of data that can be used include the person’s identity (full name, date and place of birth, nationality, contact details, profession, social security numbers, identification documents, DNA profiles, photographs, fingerprints, etc.) and the nature of the alleged offences (criminal category, date and place of the offence, type of investigation, etc.). A case management system with temporary work files and an index for personal and non-personal data is to be set up by Eurojust. Personal data are accessible only to national members and their deputies and assistants, to persons participating in Eurojust national coordination systems who are connected to the case management system, as well as to authorised Eurojust staff. It should be noted that the obligation of confidentiality continues to apply after the termination of their activities with Eurojust.

Within Eurojust, one member of staff is specially appointed to be responsible for data protection. His/her tasks include ensuring that the processing is lawful and that a written record of the transmission and receipt of data is kept.

Generally speaking, any individual may consult data concerning him/her and ask the data to be corrected or deleted if they are incorrect or incomplete. Any person who considers that they have suffered damage because of incorrect processing of data has the right to lodge a complaint. Eurojust is liable in accordance with the national law of the Member State where its headquarters are situated, while Member States are liable in accordance with their national law. The decision sets limits on consultations in relation to Eurojust’s activities (for example, in order to avoid compromising an investigation).

The data are kept only as long as strictly necessary after the conclusion of Eurojust’s activities. In any case, there is provision for a periodic review every three years.

Eurojust and the Member States protect the data in particular from destruction, loss, disclosure, alteration and unauthorised access.

An independent body monitors all of Eurojust’s activities in order to ensure that the processing of personal data is carried out in accordance with the decision. The Joint Supervisory Body meets periodically and when it is convened by its chairman. The chairman is appointed from permanent members that are in their third year of mandate.

Relations with other bodies

In order to carry out its tasks, Eurojust maintains privileged relations with the European Judicial Network, the European Police Office (Europol), the European Anti-Fraud Office (OLAF), the European External Borders Agency (Frontex) and the Joint Situation Centre of the Council. After approval by the Council, Eurojust will also be able to conclude cooperation agreements on the exchange of information with non-Member States, international organisations or bodies and the International Criminal Police Organisation (Interpol). Furthermore, Eurojust may coordinate judicial cooperation with non-Member States as well as to post liaison magistrates to these states for the purpose of facilitating this cooperation.

Final provisions

This decision includes provisions on the organisation and operation of Eurojust (organisation of the secretariat, appointment and length of term of office of the Administrative Director, status of staff, language arrangements, etc.).

The Council and the European Parliament are periodically informed of Eurojust’s activities and the state of play in terms of crime in the EU. In the annual report to the Council, Eurojust may make proposals for the improvement of judicial cooperation in criminal matters.

References

Act

Entry into force

 Deadline for transposition in the Member States Official Journal
Decision 2002/187/JHA

6.3.2002

6.9.2003

OJ L 63 of 6.3.2002
Amending act(s)
 		Entry into force Deadline for transposition in the Member States Official Journal
Decision 2003/659/JHA

1.10.2003

–

OJ L 245 of 29.9.2003
Decision 2009/426/JHA

4.6.2009

4.6.2011

OJ L 138 of 4.6.2009

Related Acts

Report from the Commission of 6 July 2004 on the legal transposition of the Council Decision of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime [COM(2004) 457 final – Not published in the Official Journal].
In this report, the Commission analyses the implementation of the Eurojust decision, which it deems to be disappointing: by the deadline set (September 2003), only one Member State (Portugal) had passed the complete legislation necessary to comply with the Eurojust decision. Despite the fact that by April 2004 three more Member States had adopted the relevant laws (Austria, France, Germany), six others still need to bring their national law into conformity with the decision (Belgium, Finland, Greece, Italy, Luxembourg, Spain). The remaining Member States concluded that they did not need to amend their national law. The Commission therefore wonders whether the existing rules in Member States will suffice to give full effect to the Eurojust decision and to make Eurojust an efficient and effective tool. Accordingly, it calls on all Member States to ensure a rapid and complete transposition of the Eurojust decision. In this connection, it recommends the drawing up of guidelines or circulars clarifying certain essential issues even where legislation is not indispensable; the promotion of a sufficiently rapid information flow; and the conferral on their Eurojust national members the judicial and/or investigative powers necessary.

Freezing funds: list of terrorists and terrorist groups

Leave a reply

Freezing funds: list of terrorists and terrorist groups

Outline of the Community (European Union) legislation about Freezing funds: list of terrorists and terrorist groups

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Fight against terrorism

Freezing funds: list of terrorists and terrorist groups

Document or Iniciative

Council Common Position 2001/931/CFSP of 27 December 2001 on the application of specific measures to combat terrorism.

Summary

The extraordinary European Council of 21 September 2001 defined terrorism as one of the main challenges facing the world and identified the fight against terrorism as one of the European Union’s (EU) priority objectives. The purpose of this common position is to apply further measures to combat terrorism, in addition to the United Nations Security Council Resolution 1373 (2001). Specifically, it establishes a list of individuals, groups and entities involved in terrorism whose funds and other financial assets are to be frozen as part of the fight against the financing of terrorism.

Definitions

“Persons, groups and entities involved in terrorist acts” means individuals, groups and entities on whom there is accurate information proving that they have committed, are attempting to commit or are facilitating the commission of terrorist acts.

“Terrorist acts” are defined as intentional acts that may seriously damage a country or an international organisation by intimidating a population, exerting undue compulsion of various types or by destabilising or destroying its fundamental political, constitutional, economic or social structures. The list of terrorist acts includes:

  • attacks on a person’s life or physical integrity;
  • kidnapping or hostage-taking;
  • causing extensive destruction to a public or private facility, including information systems;
  • seizure of means of public transport, such as aircrafts and ships;
  • manufacture, possession, acquisition, transport or use of weapons, explosives, or nuclear, biological or chemical weapons;
  • release of dangerous substances or causing fires, explosions or floods;
  • interfering with or disrupting the supply of water, power or any other fundamental natural resource;
  • directing or participating in the activities of a terrorist group, including by funding its activities or supplying material resources.

Merely threatening to commit any of these criminal acts is also to be treated as a terrorist offence.

The common position also defines “terrorist groups” as structured groups of persons, acting in concert to commit terrorist acts, regardless of their composition or the level of development of their structure.

List of individuals and entities concerned

The list annexed to the common position is drawn up on the basis of investigations carried out by the competent judicial and police authorities in EU countries. It must be revised at least every six months, so as to keep it up to date. The list comprises revolutionary activist groups, as well as the names of individuals belonging to such groups, including:

  • CIRA (Continuity Irish Republican Army);
  • E.T.A (Basque Fatherland and Liberty);
  • G.R.A.P.O (the First of October Anti-Fascist Resistance Group);
  • Hamas-Izz al-Din al-Qassem (terrorist wing of Hamas);
  • LVF (Loyalist Volunteer Force)
  • PIJ (Palestinian Islamic Jihad).

Osama bin Laden and individuals and groups associated with him do not feature on the list, as they are already covered by Council Common Position 2002/402/CFSP of 27 May 2002 concerning restrictive measures against Osama bin Laden, members of the Al-Qaida organisation and the Taliban and other individuals, groups, undertakings and entities associated with them. The measures in this common position are applied by Regulation (EC) No 881/2002, adopted on the same date.

Measures to be taken by the EU and its countries

Acting within the limits of its powers, the EU is to freeze the funds and other financial assets of the individuals and groups on the list. It is also to ensure that these individuals and groups do not gain access to the frozen funds and assets.

Through appropriate police and judicial cooperation, EU countries are to afford each other assistance in preventing and combating terrorist acts. For the purposes of investigating and prosecuting any of the persons and entities on the list, they may fully exploit the powers conferred on them by acts of the EU or under any other bilateral or international agreements.

Similarly to this common position, Council Common Position 2001/930/CFSP of 27 December 2001 on combating terrorism provides for the freezing of the funds and other financial assets and economic resources of individuals and groups facilitating, attempting to commit or committing terrorist acts on the territory of the EU.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Common Position 2001/931/CFSP

27.12.2001

–

OJ L 344 of 28.12.2001

Related Acts

Council Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism [Official Journal L 344 of 28.12.2001].
This regulation is a necessary EU-level measure that builds on the administrative and judicial procedures relating to terrorist organisations in EU and non-EU countries. It sets out to clamp down on any sort of financing of terrorist activities. To this end, it specifies what is meant by “funds and other financial assets” to be frozen, “banking and other financial services” and “controlling a legal person”. The regulation also provides for exceptions to unfreeze assets in certain circumstances.
The regulation provides for the establishment, review and amending of a list of persons, groups and entities to which it applies. This list has been updated by successive regulations and decisions.

Council Decision 2005/671/JHA of 20 September 2005 on the exchange of information and cooperation concerning terrorist offences [Official Journal L 253 of 29.9.2005].

Preventing and combating trafficking in human beings

Leave a reply

Preventing and combating trafficking in human beings

Outline of the Community (European Union) legislation about Preventing and combating trafficking in human beings

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Fight against trafficking in human beings

Preventing and combating trafficking in human beings

Document or Iniciative

Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA [OJ L 101 of 15.4.2011].

Summary

Trafficking in human beings is globally considered to be one of the most serious of criminal offences. It constitutes a violation against human rights and is a modern form of slavery. The new Directive adopted by the European Union (EU) defines the minimum common rules for identifying and sanctioning offences of trafficking in human beings.

Definitions

The following are considered as punishable acts: the recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, for the purpose of exploitation.

Exploitation shall include, as a minimum:

  • exploitation for prostitution or other forms of sexual exploitation;
  • forced labour or services (including begging, slavery or practices similar to slavery, servitude, exploitation for criminal activities, or the removal of organs).

Exploitation exists when a constraint has been exerted on a person (by means of threat or use of force, abduction, fraud, deception, etc.), whether or not the victim has given his/her consent.

When the victim is a child (a person below 18 years of age), these acts of exploitation are automatically deemed to be an offence of trafficking in human beings, even if none of the means of constraint set forth in the paragraph above has been used.

Penalties

Incitement to undertake trafficking in human beings, as well as the aiding and abetting, and attempt to do so shall be punishable.

The Directive sets the maximum penalty for these offences to at least five years of imprisonment and to at least ten years when the following aggravating circumstances can be identified:

  • the offence was committed against a victim who was particularly vulnerable (children always come under this category);
  • the offence was committed within the framework of a criminal organisation;
  • the offence deliberately or by gross negligence endangered the life of the victim;
  • the offence was committed by use of serious violence or has caused particularly serious harm to the victim.

Legal persons can also be held liable if the offences are committed for their benefit by a person who has a leading position. The same applies if a lack of supervision or control on the part of this person enabled another person placed under his/her authority to commit these offences.

Penalties against legal persons include criminal and non-criminal fines, and other sanctions such as placing them under judicial supervision, or judicial winding-up.

Member States may decide not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal activities which they have been compelled to commit.

With regard to the prosecution of offenders, the Directive provides for the possibility for Member States to prosecute their nationals for offences committed in another EU country and to use the same means of investigation as usually used for combating organised crime, such as phone tapping.

Assistance, support and protection for victims

Member States must ensure that assistance and support are provided to victims before, during and after criminal proceedings in order to enable them to exercise the rights conferred upon them by the standing of victims in criminal proceedings. In particular, this support may consist of the provision of accommodation, medical treatment including psychological assistance, as well as information, and interpretation and translation services, if necessary. As particularly vulnerable victims, children must receive additional measures such as physical and psycho-social assistance, access to education, and, where appropriate, the option to appoint a guardian or a representative.

During the investigation and criminal proceedings, victims must receive appropriate protection including access to legal counselling and representation, free of charge if necessary, and access to a witness protection programme, where appropriate. Any further trauma to the victim should be avoided, for example by sparing him/her any contact with the accused. Children must benefit from specific measures, particularly concerning the conditions of their hearings. Specifically, they will be interviewed without delay, in adapted premises, and by professionals trained for that purpose.

Victims of trafficking in human beings must have access to compensation for victims of violent crimes of intent.

Prevention

In order to prevent trafficking in human beings, the Directive requests that Member States:

  • discourage demand through education and training;
  • lead information and awareness-raising campaigns;
  • train the officials likely to come into contact with victims of trafficking;
  • take the necessary measures to establish as a criminal offence the use of services, sexual or other, of a person who is a victim of trafficking.

The position of a European anti-trafficking Coordinator is established in order to ensure a consistent approach to combating this phenomenon in the EU.

Denmark is not taking part in the adoption of this Directive.

Context

Trafficking in human beings is explicitly prohibited by the Charter of Fundamental Rights of the European Union and the EU has made combating this phenomenon one of the priorities of the Stockholm Programme.

This new Directive replaces Framework Decision 2002/629/JHA on combating trafficking in human beings. It adopts a wider definition of this phenomenon by including other forms of exploitation.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Directive 2011/36/EU 15.4.2011 6.4.2013 OJ L 101 of 15.4.2011

Related Acts

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: The EU strategy towards the Eradication of Trafficking in Human Beings 2012-2016 [COM(2012) 286 final – Not published in the Official Journal].
The Communication presents a strategy designed to focus on concrete measures that will support the transposition and implementation of Directive 2011/36/EU, bring added value and complement the work done by governments, international organisations and civil society both in EU and non-EU countries. The strategy identifies the following five priorities for the EU to focus on:

  • identifying, protecting and assisting victims of trafficking;
  • stepping up the prevention of trafficking in human beings;
  • increased prosecution of traffickers;
  • enhanced coordination and cooperation among key actors and policy coherence;
  • increased knowledge of and effective response to emerging concerns related to all forms of trafficking in human beings.

Within the above priorities, the Communication outlines a number of actions which the European Commission proposes to implement over the next five years, alongside EU countries, European External Action Service, EU institutions, EU agencies, international organisations, non-EU countries civil society and the private sector.

Commission Decision 2007/675/EC of 17 October 2007 setting up the Group of Experts on Trafficking in Human Beings [OJ L 277 of 20.10.2007].

EU plan on best practices, standards and procedures for combating and preventing trafficking in human beings [Official Journal C 311 of 9.12.2005].

Group of Experts on Trafficking in Human Beings

Leave a reply

Group of Experts on Trafficking in Human Beings

Outline of the Community (European Union) legislation about Group of Experts on Trafficking in Human Beings

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Fight against trafficking in human beings

Group of Experts on Trafficking in Human Beings

Document or Iniciative

Commission Decision 2011/502/EU of 10 August 2011 on setting up the Group of Experts on Trafficking in Human Beings and repealing Decision 2007/675/EC [OJ L 207 of 12.8.2011].

Summary

This Decision establishes a Group of Experts on Trafficking in Human Beings responsible for advising the European Commission on all anti-trafficking matters.

The Group’s main tasks are:

  • to provide the Commission with written contributions on matters related to trafficking in human beings, ensuring a coherent approach to the subject;
  • to help the Commission to assess the evolution of policy in the field at national, European and international levels, and to identify possible measures;
  • to provide a forum for discussion on matters related to trafficking in human beings.

The group shall be composed of fifteen members appointed by the Commission for four years on the basis of a call for applications. Its members shall be individuals with expertise and experience in the prevention of and fight against trafficking in human beings. They shall be citizens of a Member State of the European Union (EU), a candidate or potential candidate country or a European Economic Area country.

The group shall be chaired by the EU Anti-Trafficking Coordinator. Experts and observers may be invited to participate in meetings.

Neither group members nor experts and observers will receive any remuneration for their services.

Context

Set up in 2003, the group has enabled the Commission to develop its anti-trafficking policy. This Decision repeals the previous Decision establishing the group of experts, in order to take account of the new European Directive on the prevention of and fight against trafficking in human beings and the creation of the position of EU Anti-Trafficking Coordinator. The latter has the task of improving the coordination of action at European, national and international levels and of participating in the development of EU policies in the field of anti-trafficking.

References

Act Entry into force Deadline for transposition in the Member States Official Journal

Decision 2011/502/EU

1.9.2011

–

OJ L 207, 12.8.2011

Combating the sexual abuse and sexual exploitation of children and child pornography

Leave a reply

Combating the sexual abuse and sexual exploitation of children and child pornography

Outline of the Community (European Union) legislation about Combating the sexual abuse and sexual exploitation of children and child pornography

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Fight against trafficking in human beings

Combating the sexual abuse and sexual exploitation of children and child pornography

Document or Iniciative

Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating sexual abuse and sexual exploitation of children, and child pornography, replacing the Council Framework- Decision 2004/68/JHA.

Summary

This Directive harmonises throughout the European Union (EU) criminal offences relating to sexual abuse committed against children, the sexual exploitation of children and child pornography. It also lays down the minimum sanctions. The new rules also include provisions aimed at combating child pornography on-line and sex tourism. Furthermore, it aims to prevent paedophiles already convicted of an offence from exercising professional activities involving regular contact with children.

Offences and sanctions

Some twenty criminal offences are identified by the Directive divided into four categories:

  • sexual abuse, such as engaging in sexual activities with a child who has not reached the age of sexual consent or forcing them to submit to such activities with another person;
  • sexual exploitation, such as, for example, coercing a child to engage in prostitution or to participate in pornographic performances;
  • child pornography: , possessing, accessing, distributing, supplying or producing child pornography;
  • the solicitation of children on-line for sexual purposes: , proposing, via the Internet, to meet a child for the purpose of committing sexual abuse and, through the same means, soliciting the child to provide pornographic material of themselves.

At national level, the maximum terms of imprisonment must, at the least, meet certain thresholds ranging from one to ten years depending on the seriousness of the offence and depending on whether or not the child has reached the age of sexual consent. Incitement to commit an offence is also punishable.

A legal person may be held liable and sanctioned if the offence is committed for their benefit by a person who has decision-making powers. .

Several aggravating circumstances are provided for, specifically when the offence is committed against a particularly vulnerable child, or by a member of the child’s family, or where a person has abused a position of trust or authority, or also where the offender has previously been convicted of offences of the same nature

With regard to consensual sexual activities, the Directive leaves it to the discretion of Member States to decide whether or not certain practices are punishable where they involve persons who are close in age and in their degree of psychological and physical development or maturity, and which may be regarded as the normal discovery of sexuality.

Professional activities involving contact with children

In order to avoid any risk of recidivism, a person convicted for one of the offences defined by this Directive must be prevented from exercising employment involving direct and regular contact with children.. The employers concerned must be able to request information on the existence of a conviction or a disqualification from exercising this type of employment. This information must also be sent to other Member States in order to prevent a paedophile from taking advantage of the free movement of workers within the EU by working with children in another country.

Sex tourism

The organisation of trips aimed at committing acts of sexual abuse, sexual exploitation of children, and also child pornography, must also be banned. As these crimes often go unpunished in the countries where they took place, this Directive provides that Member States can try their citizens for offences of this type committed abroad.

Furthermore, along with their competency when an offence is committed on their territory or by one of their nationals, Member States may also extend their competency to offences committed abroad when the offender of the crime regularly resides in their territory, or if the offence has been committed on behalf of a legal person established in their territory, and also when the victim is one of their citizens.

Child pornography on the Internet

Member States must also ensure that child pornography sites hosted within their territory are promptly removed and must strive to remove those hosted abroad. Furthermore, under certain conditions regarding transparency and Internet user information, they have the possibility to block access to these sites in their territory.

Investigations, prosecutions and competencies

Investigations and prosecutions concerning offences must not solely depend on a report or accusation being made by the victim, and criminal proceedings must be able to continue even if that person has withdrawn his or her statement.. Furthermore, for the most serious offences, prosecutions must be possible for a sufficient period of time after the victim has reached the age of majority.

Assistance, support and protection for victims

In accordance with the provisions provided for by the Directive on the standing of victims in criminal proceedings, assistance and support must be provided to victims before, during and after criminal proceedings.. Child victims of sexual abuse, sexual exploitation or child pornography are considered as particularly vulnerable victims and must be treated in a manner which is most appropriate to their situation.

Specific protective measures will be taken, in particular, when the offender is a member of the child’s family. In addition, young victims must have, without delay, access to free-of-charge legal advice and representation, if required. Furthermore, the assistance and support provided must not depend on their willingness to cooperate in the investigation or the legal proceedings.

Prevention

Specific programmes aimed at reducing the risks of recidivism must be proposed to persons convicted or prosecuted for sexual offences against children. These persons must also be assessed to determine the danger they pose and the risks of recidivism.

Context

This Directive replaces Framework-Decision 2004/68/JHA. Given that some victims of human trafficking are also child victims of sexual abuse or sexual exploitation, this Directive also supplements the Directive on preventing and combating trafficking in human beings.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Directive 2011/93/EU

17.12.2011

18.12.2013

OJ L 335 of 17.12.2011

Information management in the area of freedom, security and justice

Leave a reply

Information management in the area of freedom, security and justice

Outline of the Community (European Union) legislation about Information management in the area of freedom, security and justice

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Police and customs cooperation

Information management in the area of freedom, security and justice

Document or Iniciative

Communication from the Commission to the European Parliament and the Council of 20 July 2010 – Overview of information management in the area of freedom, security and justice [COM(2010) 385 final – Not published in the Official Journal].

Summary

The communication presents an overview of European Union (EU) level instruments that regulate the collection, storage or cross-border exchange of personal data for law enforcement or migration management purposes. It describes the main purpose and structure of these instruments, as well as the types of personal data they cover, the authorities that have access to these data and the rules for data protection and retention. It also sets out the main principles to take into consideration when designing and evaluating such instruments in future.

Instruments in force, under implementation or consideration

The current EU level instruments consist of those that aim to improve the functioning of the Schengen area and the customs union, such as the:

  • Schengen Information System (SIS) and the second generation Schengen Information System (SIS II), which is currently under development;
  • Eurodac system;
  • Visa Information System (VIS);
  • directive on the transmission of Advance Passenger Information (API);
  • Naples II Convention;
  • Customs Information System (CIS) and its Customs File Identification Database (FIDE).

There are also EU level instruments aimed at preventing and combating terrorism and other forms of serious cross-border crime, such as the:

  • framework decision on simplifying the exchange of information between law enforcement authorities;
  • decision on stepping up cross-border cooperation;
  • Data Retention Directive 2006/24/EC;
  • framework decisions on taking account of previous convictions in new criminal proceedings and on exchanging information from criminal records, including the European Criminal Records Information System (ECRIS) for the latter;
  • Council Decision 2000/642/JHA on exchanging information between EU countries’ Financial Intelligence Units;
  • decision on cooperation between Asset Recovery Offices (AROs);
  • Cybercrime Alert Platforms.

In addition, EU agencies and bodies have been established to assist EU countries in preventing and combating serious cross-border crime, such as the European Police Office (Europol) and the EU’s Judicial Cooperation Unit (Eurojust).

As to cooperation with non-EU countries to prevent and combat terrorism and other forms of serious transnational crime, the Commission has signed Passenger Name Record (PNR) agreements with the United States, Australia and Canada. However, the European Parliament is critical of the content of these agreements and has, therefore, requested the Commission to renegotiate them. The Commission has also signed an agreement with the United States on the transfer of financial messaging data (EU-US TFTO Agreement).

Instruments envisaged in the Stockholm Programme action plan

In its action plan on the Stockholm Programme, the Commission has committed to presenting in the course of 2011 three legislative proposals:

  • a PNR package;
  • an Entry/Exit System (EES) for non-EU country nationals entering the Union for stays of a maximum of three months;
  • a Registered Travellers Programme (RTP) for simplifying border checks for certain groups of frequent travellers from non-EU countries.

The Stockholm Programme action plan also includes initiatives that the Commission is to study, with a view to presenting a communication on their feasibility:

  • an EU Terrorist Finance Tracking Programme (EU TFTP), for facilitating data transfers from the EU to the United States;
  • an Electronic System of Travel Authorisations (ESTA), for facilitating the entry of non-EU nationals who are not subject to visa requirements;
  • a European Police Record Index System (EPRIS), for facilitating the location of information across the EU by law enforcement officers.

Analysis of instruments

Only six of the above mentioned instruments involve the collection and storage of personal data at EU level: SIS, VIS, Eurodac, CIS, Europol and Eurojust. The other instruments regulate the exchange or transfer of personal information that has been collected at national level. With the exception of SIS and VIS, these instruments have a single purpose. Similarly, the personal information collected may only be used for the single purpose defined by the instrument in question, except for that collected through SIS and VIS.

Access to information from instruments that aim at combating terrorism and serious crime is limited to the police and border control and customs authorities. Access to information from Schengen-related instruments is limited to immigration authorities and, in certain circumstances, to the police and border control and customs authorities. The information flow for centralised instruments is controlled by national interfaces and for decentralised instruments by national contact points or central coordinating units.

Set of core principles for future

There is a need to establish a set of core principles for future policy developments as well as for the evaluation of the current instruments. These should consist of substantive principles, such as:

  • the safeguarding of fundamental rights, especially of the right to privacy and personal data protection via “privacy by design”;
  • an assessment of the necessity of the new instrument in terms of its impact on an individual’s right to privacy and personal data protection;
  • compliance with the principles of subsidiarity and proportionality;
  • management of risk via risk profiles.

The set of core principles should also consist of process-oriented principles, such as:

  • cost-effectiveness, taking into consideration existing instruments;
  • bottom-up policy design, taking into consideration the interests of end-users;
  • clear allocation of responsibilities, paying particular attention to governance structures;
  • reporting and review obligations to ensure the instruments serve the purposes they were designed for.

EU counter-terrorism policy

Leave a reply

EU counter-terrorism policy

Outline of the Community (European Union) legislation about EU counter-terrorism policy

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Fight against terrorism

EU counter-terrorism policy

Document or Iniciative

Communication from the Commission to the European Parliament and the Council of 20 July 2010 – The EU Counter-Terrorism Policy: main achievements and future challenges [COM(2010) 386 final – Not published in the Official Journal].

Summary

The communication presents the main European Union (EU) level legislative and policy developments, as well as some of the future challenges, in the field of counter-terrorism. It forms a preparatory step in the EU’s internal security strategy, building on the Stockholm Programme’s counter-terrorism related measures. The communication focuses on the four strands identified in the EU counter-terrorism strategy:

Prevent

The framework decision on combating terrorism is the main EU level legal instrument for dealing with terrorist offences. Amended in 2008, it now also harmonises national provisions relating to the prevention aspects of the fight against terrorism, including terrorist use of the internet. The Commission has also launched a dialogue with law enforcement authorities and service providers to counter terrorist use of the internet. To facilitate this kind of public/private partnerships, a European Agreement Model is currently being developed.

Of the several important policies the EU has adopted in recent years to combat radicalisation and recruitment, the specific EU strategy is a key instrument. Action and implementation plans were approved in 2009 to further the objectives of this strategy. The Commission’s contribution to work in this field has included its communication concerning terrorist recruitment and support for the production of a number of related studies. Furthermore, it has set up a European Network of Experts on Radicalisation (ENER) to facilitate dialogue between academics and policy makers.

In the future, the most effective ways to counter radicalisation and recruitment must be identified more accurately. The related national policies must be assessed, to which end the Commission will launch a communication in 2011, which will also serve as a basis for updating the EU strategy. More effective approaches must also be put in place to counter terrorist use of the internet, including further support to national law enforcement authorities.

Protect

Great efforts have been made in recent years to improve border security, including the introduction of new technologies in the development of the integrated border management system and of biometric passports. The second generation Schengen Information System (SIS II) and the Visa Information System (VIS) are currently being developed. Cyber security is dealt with in the framework decision on attacks against information systems and the action plan to protect critical information infrastructure. To improve transport security, especially regarding civil aviation and maritime transport, an extensive legislative framework has been established. In these two fields, the Commission also closely cooperates with national administrations on a system of inspections of airports and port facilities.

In 2008, an EU action plan for enhancing the security of explosives was approved. The Commission is also working on proposals for measures that aim at improving control of access to precursor substances used for preparing explosives. Several programmes have also been established to support the development of security and counter-terrorism policies, such as the security research programme (as part of the Seventh Framework Programme for Research and Technological Development) and the European Programme for Critical Infrastructure (EPCIP). In relation to the latter, a directive on European critical infrastructures was adopted in 2008 as a first step in creating an EU-wide approach.

Future work must concentrate on improving transport security through the use of new technologies and on developing industrial security policy with focus on standardising and certifying security solutions. Efforts should also be made to ensure the effectiveness of security research policy, in particular by strengthening links between public sector users and the research community as well as technology providers and the industry.

Pursue

In recent years, several instruments relating to data gathering and exchanges have been adopted, such as the Data Retention Directive, the decision on stepping up cross-border cooperation and the framework decisions on simplifying the exchange of information between national law enforcement authorities and on the European evidence warrant. At the same time, improvements have been made to the functioning of Europol and to its cooperation with Eurojust.

The main legislative instrument dealing with the financing of terrorism is the directive on money laundering adopted in 2005. The same year, a regulation on controls of cash entering or leaving the EU was also adopted. There are also non-legislative measures to counter terrorist financing, such as the voluntary guidelines to address non-profit organisations’ vulnerability to abuse for terrorist financing purposes.

An assessment of the new legal instruments for exchanging information is currently underway and will be presented in a separate communication. The need for EU legislation on investigation techniques will also be assessed. In addition, there is the need to establish a methodology based on common parameters for threat assessments at EU level in order to ensure that counter-terrorism policy is adequately supported by evidence.

Respond

The EU Civil Protection Mechanism is the main instrument for responding to terrorist attacks. Additional EU level mechanisms include the Crisis Coordination Arrangements (CCA) and the ARGUS system, which aim at coordinating responses to crises. Europol also supports coordinated responses to terrorist incidents through its information exchange mechanisms.

The EU action plan on chemical, biological, radiological and nuclear security was adopted in 2009, with a view to better preparing and responding to incidents in which terrorists would obtain such materials. The Commission also provides support to victims of terrorist attacks, including financial support.

The EU civil protection policy is currently being evaluated to better prepare for the follow-up actions. An assessment of ways to reinforce coordination and cooperation to facilitate consular protection during crises is also underway. Furthermore, it is essential that the EU rapid response capacity be further developed on the basis of existing instruments.

Horizontal issues

The EU counter-terrorism strategy also includes horizontal issues that are relevant for its implementation:

  • respect for fundamental rights – the tools used to fight terrorism must comply with the Charter of Fundamental Rights;
  • cooperation with external partners – cooperation should be further developed through international organisations, such as the United Nations, and with non-EU countries, particularly the United States;
  • funding – the multi-annual financial frameworks (currently the Security and Safeguarding Liberties Programme) provide funding for counter-terrorism; the feasibility of creating an Internal Security Fund will be examined in future.