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Revue internationale de droit pénal

2011/1 (Vol. 82)

  • Pages : 312
  • ISBN : 9782749213934
  • DOI : 10.3917/ridp.821.0211
  • Éditeur : ERES

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A turning point in the history of Europol

1

Twenty years after the suggestion by the German Chancellor Kohl that the Member States of the European Union had a common interest in the fight against drug trafficking and organised crime, the European Police Office (Europol) celebrated its first ten years of activity amidst significant internal and external changes.

2

Europol began operations on 1 July 1999 following the entry into force on 1 October 1998 of the Convention on the establishment of a European Police Office. On 6 April 2009, after several rounds of negotiation, the Justice and Home Affairs Council adopted the Council Decision establishing the European Police Office (ECD), which became applicable on 1 January 2010.

3

It is appropriate, therefore, to consider 2010 as the first year of the “new” Europol and, as such, a time for both a stock-taking and forward-looking exercise.

The Europol Council Decision replaces the Europol Convention

4

Just like any other treaty, the Europol Convention can only be amended either in accordance with its own provisions or by another treaty. An Annex to the Convention included a list of other forms of serious international crime falling within Europol’s competence, and Article 43 (3) allowed the Council to amend the list. However, this was the only form of change allowed by the Convention, since substantial changes needed to be introduced by Protocols, which were subject to ratification by all the signatory Member States.

5

The procedure to amend the Convention is explained by the fact that when Europol was set up there was no treaty base allowing it to be established other than by a Convention between Member States. The Treaty of Amsterdam, which entered into force on 1 May 1999, addressed this problem by re-writing Title VI of the Treaty on the European Union and adding a new Article 30 (2) which required the Council to take major steps in the development of Europol. The opportunity provided by the Treaty of Amsterdam was exploited by the European Council of Tampere in 1999, which decided to set up a body with the task of coordinating the activities of national prosecuting authorities and supporting criminal investigations in organised crime. Accordingly, Eurojust was set up by a Council Decision which could be amended by further decisions (2002, amended in 2003).

6

During its ten years of application, the Convention was amended by three Protocols with a view to, respectively, adding money-laundering to the list of crimes (2000), allowing Europol staff to participate in Joint Investigation teams (2002), and extending Europol’s mandate, streamlining its methods of operation and re-writing the nature of the crimes within Europol’s competence (2003). Due to the lengthy ratification process, these Protocols only entered into force in 2007.

7

The delays experienced in amending the Convention prompted the Justice and Home Affairs Council of June 2006 to conclude that work should start to consider whether and how to replace it by a Council Decision, whose primary aim should be to make Europol more flexible to react as soon as new developments, crime trends and mandates emerged. The fundamental nature of Europol as a law enforcement support centre for the collection, exchange and analysis of information on cross-border forms of crime affecting two or more Member States without coercive powers was not affected, although its mandate was extended from “organised” to “serious” crime.

The Lisbon Treaty

8

Only a month prior to the ECD’s application, the Treaty on the Functioning of the European Union (TFEU, also known as Lisbon Treaty) had entered into force. The inter-institutional framework introduced by the TFEU was designed to provide greater democratic legitimacy to the whole area of EU police cooperation. In particular, Article 88 of the Lisbon Treaty provides that Europol shall be governed by a new legal regime on the basis of a Regulation, which should replace the Council Decision. The Regulation is to be adopted in a co-decision by the European Parliament and the Council. An important aspect of the future Regulation relates to the procedure for the scrutiny of Europol’s activities by the European Parliament together with national Parliaments, thereby addressing the subject of democratic scrutiny and parliamentary controls which have been debated throughout Europol’s existence.

9

The Lisbon Treaty also introduced other provisions affecting the EU Justice and Home Affairs area, particularly those which established the Standing Committee on Internal Security (COSI). These provisions should be seen in the broader context of the need for a multidisciplinary approach, to enhance coherence, maximum efficiency and structural focus. The tasks of COSI relate to promoting and strengthening operational cooperation on internal security and facilitating the coordination of action of Member States’ competent authorities (Art. 71 TFEU) ; developing, monitoring and implementing the internal security strategy (The Stockholm Programme – An open and secure Europe serving and protecting citizens, 2010) ; and, supporting the Council in matters relating to the “solidarity clause” (Art. 222 TFEU).

10

It is apparent that COSI is a governance instrument to oversee, among other aspects, the successful implementation of the Internal Security Strategy (ISS) endorsed by the European Council in March 2010 and providing that Europol is best placed to assist it through its leading strategic assessments, namely the Organised Crime threat Assessment (OCTA), the Terrorism Situation and Trend Report (TE-SAT) and regional threat assessments which provide indications on current and future criminal trends.

A new Strategy

11

The new legal status has provided an opportunity for enhanced capabilities and strategic developments in supporting Member States in the fight against organised crime and terrorism. Europol endeavoured to exploit this opportunity through a new multi-annual strategy better connecting its vision and mission statements to the work programme.

12

Spring10.

13

The 2010-2014 Strategy set four goals that Europol should reach in its further development. The first objective is to maximise the operational value of information held by Europol and to streamline the delivery of analysis and other services Europol to function as the principal EU support centre for law enforcement operations. The next strategic goal relates to Europol’s unique position as a key information broker and clearing house, which should make Europol the EU criminal information hub ; coordination among Member States with a view to identifying common information gaps and priorities for investigation of the most prominent criminal target is essential and should be strengthened. Europol’s information management capabilities provide the opportunity to grow as a central “information powerhouse” to address these issues and to build an information platform capable of facilitating a more effective operational response to security threats. The third strategic goal concerns the development of Europol’s capabilities as an EU centre for law enforcement expertise so as to address gaps in knowledge and expertise by developing and sharing best practice, including new techniques. Finally, the new Strategy calls for Europol to grow as a modern and efficient organisation operating within a spirit of efficiency accountability, and cooperation.

Organized crime in and around Europe

14

Since 2006 Europol has been tasked by the Justice and Home Affairs Council to produce the European Union OCTA, which is a core product of the intelligence-led law enforcement concept and a forward-looking assessment of cross-border organised crime threatening the EU and its citizens. The OCTA is based on a multi-source approach including law enforcement and non-law enforcement contributions and should help close the gap between strategic findings and operational activities. Its ultimate aim is to identify law enforcement priorities that are complementary to individual Member States’ law enforcement concerns in order to steer cooperation towards objectives taking into consideration the dynamics and negative effects of organised crime both within and outside national and EU borders.

15

The current OCTA first explores criminal markets focusing on emerging issues and new trends with a view to outlining organised crime’s operating environment and the opportunities which criminal groups are exploiting or are likely to exploit. Drug trafficking, money laundering, crimes against persons, particularly trafficking in human beings and child abuse, fraud and counterfeiting, especially euro counterfeit, feature among the most relevant criminal activities analysed in the report.

16

The criminal hubs are then described through an assessment of their characteristics and possible evolution and through the analysis of the interaction among organised crime groups and criminal activities occurring within and among the hubs. A criminal hub is a conceptual entity identified by a combination of factors such as proximity to major destination markets, geographic location, infrastructure, type of organised crime group and migration processes concerning key criminals or criminal groups in general.

17

The OCTA identifies the North-West, North-East, South-West, South-East and Southern criminal hubs, which are supplied by the so-called feeders which are often locations just inside or outside the EU borders providing goods and services to the hubs. The feeders can have different roles : in some cases they are relatively passive transit zones to the EU, in other instances they are active centres where business deals on commodities are negotiated, goods stored and re-packaged and strategies for the delivery of the goods defined and agreed. The role of the feeders is crucial as they procure and move goods from the source to the EU and in some cases they alter or finalise the commodities in preparation for the distribution.

18

The factors affecting the development of criminal hubs in the EU are mainly the changing patterns of supply and demand in the EU and neighbouring regions, particularly in respect of illicit drug trafficking originating from Latin America and affecting the EU through North and West Africa, and of counterfeit goods, especially cigarettes, mainly produced in China and other Far East locations and accessing the EU through both the North-West and Southern criminal hubs.

19

Finally, the OCTA analyses the capabilities and intentions of organised criminal groups active in the EU through their features, strategies and field of action. The OCTA typology classifies organised crime groups according to the geographic location of their strategic centre of interest and their capability and intention : to procedure for the scrutiny of Europol’s activities, to use systematic violence or intimidation against local societies to ensure non-occasional compliance or avoid interferences (VI-SO) ; to interfere with law enforcement and judicial processes by means of corruptive influence (IN-LE) or violence/intimidation (VI-LE).

20

The VI-SO strategy underlies organised crime’s struggle for profit or power or both. In this context, power is vital for durability and means a capability to influence the behaviour of other persons and societal groups, be those potential or actual competitors or people not pertaining to the criminal environment. Systematic violence to ensure non-occasional compliance and avoid interferences can be a crucial variable in this equation and may arouse visibility, which organised crime groups are nonetheless able to turn into a positive factor for their durability since it can facilitate intimidation of local populations.

21

The IN-LE and VI-LE strategies aim at manipulating the law enforcement process and can be accomplished through violence or corruptive influence. VI-LE behaviour takes place when violence is used against witnesses or victims not pertaining to the criminal environment after they have reported crimes to the law enforcement agencies. IN-LE behaviour consists in focusing on the use of middle level corruptive influence against law enforcement to avoid detection or any low or middle level corruptive influence to hinder an on-going law enforcement or judicial process.

22

The IN-SO strategy refers to the local influence and impact that an organised crime group may have on the lives of a significant number of people not part of the criminal environment. Influence may be confined to specific communities that are not integrated with the surrounding society as these persons may be more vulnerable to organised crime.

23

The OCTA also identifies money laundering as the common denominator of all organised criminal activities since this is the necessary interface between licit and illicit markets through which profits generated by criminal activities are funnelled into the legitimate economic sector for business investments or for sustaining the lifestyle of criminal group members.

24

Stemming from the policy debate over the contribution that OCTA may make to the EU Internal Security Strategy, the Council of the European Union concluded in November 2010 to establish and implement a multi-annual policy cycle with regard to serious international and organised, crime in order to tackle the most important criminal threats in a coherent and methodological manner through optimum cooperation between the relevant services of the Member States, EU Institutions and Agencies as well as third countries and organisations. The first step of this cycle should be policy development on the basis of a European Union Serious and Organised Crime Threat Assessment (SOCTA) that must provide for a complete and thorough picture of the criminal threats impacting the European Union.

Terrorism situation

25

In parallel to the OCTA, Europol produces the European Union Terrorism Situation and Trend Report (TE-SAT), which aims at providing law enforcement officials, policy-makers and the general public with facts and figures regarding terrorism in the EU while seeking to identify trends in this phenomenon. The TE-SAT contains basic facts and figures regarding terrorist attacks, arrests and activities in the EU and is mainly based on information originating from criminal investigations into terrorist offences carried out by the Member States’ competent authorities.

26

The EU Member States agreed to consider as acts of terrorism those which aim at intimidating populations or destabilising the fundamental political, constitutional, economic or social structures of a country or an international entity or organisation. The 2010 TE-SAT summarised terrorism and related phenomena, such as funding or laundering funds to be directed to terrorism, in the EU according to both quantity and quality while trends are identified for the period 2007 to 2009.

27

Although the EU Member States continue to be exposed to a serious threat from Islamist, ethno-nationalist and separatist terrorist groups, as well as from left-wing and anarchist terrorism, in 2009 the overall number of terrorist attacks in the EU decreased by 33% compared to 2008 and was almost half of the number of attacks reported in 2007. Islamist terrorism is still perceived by the EU and Member States as the biggest threat to most member States, despite the fact that only one Islamist terrorist attack took place in 2009. Islamist terrorists have threatened EU Member States with perpetrating attacks aiming at indiscriminate casualties. This threat is influenced by developments in conflict zones and politically unstable countries but, at the same time, the EU provides a platform, that is, an area or space from which terrorist groups may prepare and carry out terrorist acts elsewhere in the world. Separatist terrorism, however, continues to be the form which affects the EU most in terms of the number of attacks carried out, particularly Spain and France.

28

The most important trends identified by the 2010 TE-SAT concerning Islamist terrorism are that the relevant groups are still aiming to cause mass casualties of innocents and that their activities are increasingly being perpetrated by self-radicalised and often self-instructed individuals acting alone. Weak States with ungoverned spaces, large young populations, economic problems and social grievances often provide the breeding ground for Islamist terrorism ; furthermore, Western converts are increasingly being used by Islamist terrorist groups for propaganda, recruitment purposes, or even terrorist acts.

29

As far as the modi operandi are concerned, in addition to traditional means, terrorist and extremist organisations exploit all available technologies in the area of communication, propaganda and money transfer to support their activities, while home-made explosives remain the type most used to carry out attacks.

30

Furthermore, in 2010 the Council decided to give Europol the responsibility for managing United States’ requests for access to terrorist financing data held in the EU within the so-called Terrorist Financing Tracking Programme.

Contributing to Europe’s internal and external security

31

The divide between external security matters such as war, defence and international order on the one hand, and purely internal security issues such as organised crime, terrorism, policing and public order on the other, is becoming less evident, at times even non-existent, which has prompted the emergence of a security continuum between the two dimensions. In fact, perhaps it is all essentially interrelated by reason of necessity and reality. Still, the EU needs to define a common ISS before it can move to an overarching security model which would prioritise the interests of European citizens while addressing the rapidly evolving challenges.

32

In this view, in 2010 the European Council endorsed the European Union ISS, which embodies the Member States’ resolve to protecting rights and freedoms, to improving mutual cooperation and solidarity, to addressing the causes of insecurity, to prioritising prevention and anticipation, to communicating security policies to citizens, and to recognising the interdependence between internal and external security in establishing a “global security” approach with third countries.

33

The ISS sets out several common threats and challenges which call directly upon Europol as the provider of support and analysis to EU law enforcement actions. In particular, the ISS recognises that crime takes advantage of the opportunities offered by a globalised society such as high-speed communications, high mobility and instant financial transactions, as well as phenomena which have a cross-border impact on security.

34

Terrorism in any form, serious and organised crime, particularly trafficking in arms, drugs and human beings and related financial crimes, cyber-crime, and cross-border crime in general, require an EU-wide approach through increased law enforcement cooperation and common initiatives at the political, legislative and operational levels.

35

The ISS recognises the value of Europol’s analysis of potential future situations and scenarios which facilitate early identification of a threat and of policy planning and, at the same time, calls upon more rigorous cooperation between Europol and other EU agencies and bodies involved in EU internal security (Frontex, Eurojust, Cepol and Sitcen) in order to improve the provision of effective support to specialist services in the Member States.

36

In this connection, Europol, Eurojust and Frontex issued in 2010 a joint report on the state of internal security in the EU, which analysed the specific threats posed by organised crime, terrorism and illegal migration, highlighting both their distinctive characteristics and the commonality in terms of modi operandi and impact.

37

The report concluded that each threat carries unique challenges with evidence of the threat growing in scale and complexity, particularly in regard to crimes committed via the Internet. However, the report also revealed as significant common features the transnational nature of crime and terrorism, the mobility of criminal and terrorist groups, the use of well established routes connecting external feeders with internal criminal hubs, and the exploitation of both poorly integrated communities and of key facilitators such as document forgery, the transport sector and technology.

Future operational and strategic challenges

38

In recent years, the European Union and Europol have undergone major structural changes which pose three horizontal challenges : preserving the “European model” in the area of home affairs by balancing mobility, security and privacy ; coping with the growing interdependence between internal and external security ; and, ensuring the best possible flow of data within European-wide information networks.

39

As far as Europol’s future is concerned, the new legal framework should facilitate its role as a close partner and focal point for national police forces. At the same time, improving data transfers from Member States to Europol is necessary if it is to become a genuine information platform for Member States, including by means of developing automatic data transfer instruments. Furthermore, Europol should be increasingly used and expanded into a competence centre for technical and coordinative support.

40

The EU ISS, adopted by the European Council in 2010, envisages a central role for Europol, which, along with its new legal status as a fully-fledged EU agency, will give it the opportunity to better fulfil its mandate of providing operational support to the Member States’ fight against organised crime and terrorism.

Notes

[*]

Secretary of the Management Board. The views expressed in this article are those of the author and do not necessarily reflect those of the European Police Office.

Plan de l'article

  1. A turning point in the history of Europol
    1. The Europol Council Decision replaces the Europol Convention
    2. The Lisbon Treaty
    3. A new Strategy
  2. Organized crime in and around Europe
  3. Terrorism situation
  4. Contributing to Europe’s internal and external security
  5. Future operational and strategic challenges

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