MIME-Version: 1.0 Content-Location: file:///C:/5C635F61/ARTICLE69A.htm Content-Transfer-Encoding: quoted-printable Content-Type: text/html; charset="us-ascii" [ARTICLE 69A]

FIGHTING CROSS-BORDER CRIME:

FUNDAMENTAL CHANGE IN ABOLITION OF PILLAR STRUCTURE

WILL LEAD TO FUNDAMENTAL CHANGE IN <= st1:place w:st=3D"on">UK CRIMINAL JUSTICE SYSTEM

 [ARTICLE 69A]

 

 

AMENDMENT TO: Treaty of Lisbon amending the Treaty on European Union and t= he Treaty establishing the European Community (Lisbon, 13 December 2007)<= /span>

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Policy Area:

Treaty= on the Functioning of the European Union, Part Three Policies and Internal Act= ions of the Union, Title IV – Area of Freedom, security and Justice, Chapt= er 4 – Judicial cooperation in criminal matters, Article 69A

 

Amendment:

Clause= 2, page 1, line 12, after ‘excluding’ insert –

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‘= ;(i) Article 2, paragraph 67, inserted Chapter 4 and Ar= ticles 69A to 69E TEC (TFEU) relating to judicial cooperation in criminal matters;= and

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(ii)’.

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<= st1:City w:st=3D"on">Lisb= on Treaty: =

“JUDICIAL COOPERATION IN CRIMINAL MATTERS

67) Articles 67 to 69 shall be repealed. The following Chapter 4 and Articles 69 A to 69 E shall be inserted. Articles 69 A, 69 B and 69 D shall replace the current Article 31 = of the Treaty on European Union.

"CHAPTER 4 JUDICIAL COOPERATION IN CRIMINAL MATTERS=

ARTICLE 69 A

1. Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article 69 B.

The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures to= :

(a) lay down rules and proced= ures for ensuring recognition throughout the Union of all

forms of judgments and judicial decisions;

 (b) prevent and settle conflicts of jurisdiction between M= ember States;

(c) support the training of t= he judiciary and judicial staff;

(d) facilitate cooperation be= tween judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions.

2. To the extent necessary to facilitate mutual recognit= ion of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, the European Parliament a= nd the Council may, by means of directives adopted in accordance with the ordi= nary legislative procedure, establish minimum rules. Such rules shall take into account the differences between the legal traditions and systems of the Mem= ber States.

They shall concern:

(a) mutual admissibility of evidence between Member States;

(b) the rights of individuals= in criminal procedure;

(c) the rights of victims of = crime;

(d) any other specific aspect= s of criminal procedure which the Council has identified in

advance by a decision; for the adopti= on of such a decision, the Council shall act

unanimously after obtaining the consent o= f the European Parliament.

Adoption of the minimum rules referred to in this paragr= aph shall not prevent Member States from maintaining or introducing a higher le= vel of protection for individuals.

3. Where a member of the Council considers that a draft directive as referred to in paragraph 2 would affect fundamental aspects of= its criminal justice system, it may request that the draft directive be referre= d to the European Council. In that case, the ordinary legislative procedure shal= l be suspended. After discussion, and in case of a consensus, the European Counc= il shall, within four months of this suspension, refer the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure.

Within the same timeframe, in case of disagreement, and = if at least nine Member States wish to establish enhanced cooperation on the b= asis of the draft directive concerned, they shall notify the European Parliament, the Council and the Commission accordingly. In such a case, the authorisation to proceed with enhanced cooperation re= ferred to in Article 10(2) of the Treaty on European Union and Article 280 D(1) of this Treaty shall be deemed to be granted and the provisions on enhanced cooperation shall apply.”

 

Consolidated Treaty Article(s):

 “Article 31 =

1. Common action on judicial cooperation in criminal mat= ters shall include:

(a) facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the Member States, including, where appropriate, cooperation through Eurojust, in relation to proceedings and the enforcement of decisions;

(b) facilitating extradition between Member States;

(c) ensuring compatibility in= rules applicable in the Member States, as may be necessary to improve such cooperation;

(d) preventing conflicts of jurisdiction between Member States;

(e) progressively adopting me= asures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking.

2. The Council shall encourage cooperation through Eurojust by:

(a) enabling Eurojust to facilitate proper coordination between Member States' national prosecuti= ng authorities;

(b) promoting support by Eurojust for criminal investigations in cases of seri= ous cross-border crime, particularly in the case of organi= sed crime, taking account, in particular, of analyses carried out by Europol;

(c) facilitating close cooper= ation between Eurojust and the European Judicial Netw= ork, particularly, in order to facilitate the execution of letters rogatory and the implementation of extradition reques= ts.”

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Expl= anation:

The Lisbon Treaty will establish a massive and “fundamental change”= to the structure of the European Union: it will abolish the pillar structure and m= ove third pillar matters (police and judicial cooperation in criminal matters) = to the EC Treaty (to be renamed Treaty on the functioning of the European Unio= n). This will have serious implications because decision-making on police and judicial cooperation would no longer be intergovernmental and it will be subjected to the Community method. Judicial cooperation in criminal matters and police cooperation, will come within the scope of the UnionR= 17;s overall legal and judicial framework. The co-decision procedure and qualified majo= rity voting will be the rule in making decisions. =

 

The current EU Third Pillar legal instruments such as framework decisions and common positions will disappear. The following EC instruments will be used: regulations, directives and decisions. The ECJ will have full jurisdiction to review and interpret measures on judicial cooperation in criminal matters and police cooperation. The Treaty of Amsterdam provided the ECJ with jurisdiction over certain third pillar measures. Hence, under existing Arti= cle 35 TEU, the ECJ acquired jurisdiction to give preliminary rulings on interpretation and validity of framework decisions, decisions and conventio= ns adopted under Title VI (police and judicial cooperation in criminal matters) however only to the courts of a Member State which has exp= ressly accepted such jurisdiction. The UK has not submitted a declaration under Article 35 TEU – thus it does n= ot accept the jurisdiction of the Court to give preliminary rulings on such matters.

 

Moreover, the ECJ acquired jurisdicti= on “to review the legality of framework decisions and decisions in actio= ns brought by a Member State or the Commission” on the same grounds as those in Article 230 EC. With the collapse of the pillar structure there is no corresponding provision to Art= icle 46 TEU which limits the ECJ jurisdiction regarding third pillar matters. The ECJ will take greater control over UK affairs. Article 35 TEU wi= ll be repealed, unifying and increasing the jurisdiction of the Court. Hence, national courts “against whose decisions there is no judicial remedy under national law” will be obliged to refer a question to the ECJ concerning criminal and police cooperation. The Lisbon Treaty brings judici= al co-operation in criminal law and police co-operation within the general framework of judicial control as applies to other areas of EU law. The ECJ = will have full jurisdiction and not solely the power to give preliminary rulings= .

 

Presently, the Commission does not ha= ve the right to submit an application to the European Court of Justice where a= Member State has not fulfilled its obligations as far as the implementation of EU legislation in this area concerned. Under the terms of the Lisbon Treaty, t= he Commission will have power to bring infringement proceedings against Member States bef= ore the ECJ, on police and judicial cooperation in criminal matters. However, Article 240b of the Lisbon Treaty states ̶= 0;In exercising its powers regarding the provisions of Chapters 4 and 5 of Title= IV of Part Three relating to the area of freedom, secur= ity and justice, the Court of Justice of the European Union shall have no jurisdiction to review the validity or proportionality of operations carried out by the police or other law-enforcement services of a Member State or the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security." Hence, the restriction on the jurisdiction of the Court presently provided by Article 35(5) TEU is maintained. The right of legislative initiative is st= ill shared between the Commission and the Member States, yet the Lis= bon Treaty introduces a limitation since a proposal must be presented by over a quarter of = the Member States. This will greatly reduce the number of = Member State initiatives. This will significantly reduce the UK’s right of legislati= ve initiative.

 

Unlike this new Article in the Lisbon Treaty, the existing Article 31 TEU, on judi= cial cooperation in criminal matters, has not provided for the principle of mutual recognition of judicial decisio= ns in criminal matters. The Tampere European Council called on the Member States to make the principle of mutual recognition the cornerstone of judicial cooperation both in civil= and in criminal matters. This means that once a decision has been taken by a judicial authority of one Member State, this decision must be recognised and enforced in other Member States, with = as minor control as possible, as if it were a national decision. It is based on mutu= al confidence that Member States shall have respect in each other systems. In = 2001 the EU adopted a programme of measures to implement the principle= of mutual recognition of decisions in criminal matters. This programme led to the adoption of legislation such as the Framework decision on= the European arrest warrant and the Framework decision on the execution in the European Union of orders freezing property or evidence. The are other measu= res to adopted on the basis of the mutual recognition principle and Article 31 = TEU such as the Framework Decision= on the Application of the Principle of Mutual Recognition on Confiscation Orde= rs, a Framework Decision on the Application of the Principle of Mutual Recognition to Financial Penalties a= nd the European Evidence Warrant has all been discussed by the Justice and Home Affairs Councils. They all rule over the way in which the UK must= take into account convictions in the course of new criminal proceedings and on the Eu= ropean enforcement order and transfer of sentenced persons between Member States of the EU.

 

Now, mutual recognition will take pri= me place in the new Lisbon Treaty. With it, we must now accept that UK citi= zens can now be arrested for non-UK crimes and tried under non-UK law. The new Artic= le 69 A (1) states that “Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article 69 B.” Hence, the Lisbon Tr= eaty enshrines the principle of mutual recognition of judicial decisions in crim= inal matters. However, whereas the abovementioned measures were adopted by unani= mity in the Council and through the consultation procedure, future measures base= d on this principle will be adopted through the co-decision procedure and by QMV= in the Council. These measures will affect fundamental issues of sovereignty a= nd will be adopted by QMV rather than through unanimity. Therefore, it will be easier to adopt measures based on the principle of mutual recognition of judicial decisions – this will lead to extreme cases of injustice suc= h as the arbitrary administration of the European arrest warrant, which replaced= the previous cooperative extradition procedures between the EU’s Member States. The European arrest warrant is executed by the Member States= on the basis of the principle of mutual recognition which means that the judic= ial authority decision of a M= ember State for the arres= t of a person should be recognised and executed in the= other EU Member States. Dual criminality – which means that the act in ques= tion must be a crime not only in the country in which it took place but also in = the country of surrender – was abolished for 32 categories of offences. U= nder the European arrest warrant, someone could be extradited from Britain for offences which are crimes in a= nother EU Member State but not in the UK. UK citizens will be arrested for non-UK crimes and tried under non-UK law. Tha= t is completely unacceptable.  

 

Moreover, judicial cooperation in criminal matters will also cover the approximation of laws and regulations = of the Member States concerning criminal proceedings and the definition of criminal offences and sanctions.

 

The Council, acting by QMV, and the European Parliam= ent through the ordinary legislative procedure (co-decision procedure) may adopt measures to “lay down rules and procedures for ensuring recognition through the Union of all forms of judgme= nts and judicial decisions.” This provision expands the existing <= span style=3D'font-size:11.0pt;font-family:Arial;color:black'>Article 31(1)(c) TEU, which provides that “common action on judicial cooperation in criminal matters” shall ensure “compatibility in rules applicable in Member States as may be necessa= ry to improve such cooperation.” The new provision will imply mutual recognition of non-custodial pre-trial supervision measures in t= he investigation procedure, mutual recognition of final judgments which implies mutual information on convicti= ons (exchanging information on convictions), enforcement of criminal penalties, enforcement of non-custodial measures, suspended sentences, mutual recogn= ition of disqualifications.  = This provision would prevent any judgment from the courts of another EU Member State from being challenged in the UK c= ourts, with grave consequences for individuals, businesses and legal system in the= United Kingdom. It is a fact that the different Member States have different criminal syste= ms, some Member States have low standards for the rights of the accused, and in= some Member States, the accused do not have access to proper advice therefore mutual recognition will raise concerns of fairness. This is an unacceptable state of affairs. It must be stopped.  

 

The Union may also adopt, according to Article 69A (1) (b) “measures to prevent= and settle conflicts of jurisdiction between Member States.” The present Article 31 (1) (d) provides already for action in preventing conflicts but = not settling. This entails that there will be binding rules at the EU level whi= ch will require Member States to take steps to avoid or solve conflicts of jurisdiction. Member States have different criminal justice systems, and wh= en the EU addresses the issue of 'conflicts of jurisdiction' in criminal proceedings, it is unclear = of which Member State will be favoured. The EU cannot adopt legislation laying down jurisdiction rules given exclusive jurisdiction to a single Member State, for each type of case.

 

The Lisbon Treaty also provides for measures to “support the training of the judiciary and judicial staff”. The European Commission has al= ready launched training programmes to law enforcement professionals. These programmes have been partl= y financed by different projects. There is also a European judicial training network a= imed at improving mutual understanding of Member States legal systems among judg= es and prosecutors and develop the practical implementation of judicial cooperation within the European Union. The network is focused on criminal a= nd civil matters. Therefore, there will be further= programmes funded by the EU budget. Moreover, the new Article 69a (1) (d) provid= es for measures to “facilitate cooperation between judicial or equivalent authorit= ies of the Member States in relation to proceedings in criminal matters and the enforcement of decisions.” This provision is very similar to present Article 31 (1) (a) TEU. It will amount to massive costs for the UK – = as does its own criminal justice system – and it is not in the British taxpayers’ or the national interest to commit itself to such costs. <= o:p>

 

Since the principle of mutual recognition will become a cornerstone of judicial cooperation in criminal matters, the UK will need to meet minimum standards in criminal proceedings within the EU. Under Article 69A(2), the Council acting by QMV toget= her with the European Parliament through the ordinary legislative procedure (co-deci= sion) allows the Union to establish minimum rules to adopt directives establishing minimum rules in order to “facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension.” Hence, this provis= ion represents a new EU competence to adopt measures concerning criminal proceedings. Such minimum rules concern mutual admissibi= lity of evidence between Member States which are related to different modes of tria= l in the Member States will be adopted by QMV. Therefore, the UK will= not be able to block an EU standard on the admissibility of evidence. The Union may also adopt minimum rules concerning the rights of individuals in criminal procedures.

 

The European Commission already propo= sed, in 2004, a draft framework decision on certa= in procedural rights in criminal proceedings. The Commission’s dr= aft proposal contained the following rights: the right to legal assistance, the right to interpretation and translation, the right to have medical attentio= n, the right to communicate with consular authorities. However, there are seve= ral concerns over the proposed legal base. The Commission’s proposed legal base is Article 31(1)(c) TEU which states that &= quot;ensuring compatibility in rules applicable in the Member States as may be necessary = to improve judicial co-operation in criminal matters". The Lisbon Treaty provides for a clear legal base for such measures. It also may adopt minimum rules concerning the rights of victims of crime. There is already = a 2004 EU Council Directive on compensation for crime victims which requires Member States to have a national scheme in place that guarantees compensation to victims of crime. The compensation must be decided upon and paid by the Member State in which the = crime occurred.

 

Moreover, this list of criteria for <= st1:country-region w:st=3D"on">UK crim= inal proceedings may be endless since, according to this provision, the Council, acting unanimously after obtaining the consent of the Euro= pean Parliament, may decide to extend the aspects of criminal proceedings. Hence, the Europe= an Parliament acquires powers of consent (assent procedure). Under the assent procedure which in the Lisbon Treaty is referr= ed to as "consent", the European Parliament either accepts or rejects a proposal but it cannot amend it. This minimum rule appli= es to cases with cross border implications but they are likely to affect purely national cases. This provision stresses that the adoption of minimum rules “shall take into account the differences between the legal traditions= and systems of the Member States" and “shall not prevent Member States from maintaining or introducing a higher level of protection for individuals.= 221; However, the experience tells us that the Commission has not being taken in= to account the special nature of UK common law. This provision raises major concerns over the limitation of the right to trial by jury and habeas corpus.

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What about= an emergency brake on such legislation? Article 69A(3) does provide for an emergency brake bu= t only on draft directives establishing minimum rules criminal proceedings. Hence,= if one Member State considers that a draft direc= tive would affect fundamental aspects of its criminal justice system, it = may request the draft to be referred to the European Council and the ordinary legislative procedure will be temporarily suspended. The European Council w= ould decide by consensus. Moreover, the Lisbon Treaty provides for the possibili= ty for at least nine Member States wishing to establish ‘enhanced cooperation’, on the basis of the draft directive in question, to move forward. If the European Council is unable t= o find an agreement within four months, a notification to the European Parliament, the Council and the European Commission will be enough to allow this group to establish enhanced cooperation. (The difficulty with such cooperation is that each Member State shall be compelled at some future point to subscribe to enhanced cooperation anyway, when it becomes Union law). According to this provision, the normal= ly required authorisation is therefore “deemed to be granted.” Therefore, there is no need to go through the proced= ure mentioned in Article 280 D TFEU, because in this way enhanced cooperation is speeded up. The non-participating States cannot prevent the others in going ahead with furt= her integration. <= /span>

 

It is said that our opt outs and opt ins on the abo= ve measures are a matter of free choice. But are they? If it is a free choice,= the UK has the right to choose whether to take part in judicial and police coopera= tion in criminal matters. Nevertheless, once opting in, UK is subjected to the Commis= sion enforcement powers and to the ECJ jurisdiction. Therefore, it can be taken before the ECJ for failure to implement correctly or in due time criminal l= aw legislation. Once it has decided = to opt-in there is no right to opt-out, even if the outcome of the negotiation= s is not acceptable. It is only in some cases that the UK would be entitled to apply= the ‘emergency brake.