Summary: March 18, 2004: Existing legislative instruments relevant to the fight against terrorism, and draft measures already on the Council table (Brussels)
The Union has already put in place a series of legislative measures to combat terrorism. But implementation of these measures is often slow, poor an inadequate.
The 5 Member States which have not yet taken the necessary measures to put the European Arrest Warrant[1] into their national law should do so as a matter of top priority. And transposition is not enough: the Commission will report at the end of this year on the measures Member States have taken and on the operational working of the European Arrest Warrant, a matter which the Commission and Eurojust are monitoring constantly;
In the wake of 11 September 2001, the Union adopted a landmark Framework Decision on the fight against terrorism[2] to ensure that the definition of terrorist crimes is similar across the Union and to set common minimum maximum sentences applicable to these atrocious crimes. Three Member States have not fully reported on the implementation of this legislation, and for the others it is not yet clear that national measures fully implement the requirements of the Framework Decision.
In the coming weeks the Commission will report the failings in no uncertain terms to the Council and will do all it can to ensure that the Member States take the necessary measures;
The 2000 EU Convention on Mutual Assistance in Criminal Matters and its 2001 Protocol provide for improvements to the rules on mutual assistance. It includes provisions relating to cross-border requests for interception of communications and monitoring of bank accounts. No legal deadline was set for implementation of this instrument. To date only four Member States have formally ratified the Convention, although other Member States have adopted the necessary legislation.
In relation to tackling the means by which terrorist organisations finance their activities, it is essential that Member States take the necessary measures to implement the Framework Decision on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime[3] which limits Member States' reservations in respect of the 1990 Council of Europe Convention on laundering, search, seizure and confiscation of the proceeds
of crime and approximates penalties for money laundering offences.
The deadline for implementation of this instrument was 31 December 2002, and although all but one of the Member States have informed the Commission of the measures taken to implement it, in some cases the information provided was not complete.
The Framework Decision on joint investigation teams[4] provides an essential operational tool for allowing investigators from two or more Member States to work together to tackle cross-border criminal activities. The instrument should have been implemented by Member States by the start of 2003; however, to date only nine Member States have notified transposition measures to the Commission;
Furthermore, attention should be given to ensuring that the full use is made of the tools set up by two Council Decisions relevant for the fight against terrorism, namely the Decision establishing Eurojust[5] and the Decision on the implementation of specific measures for police and judicial cooperation to combat terrorism[6]. Under this latter instrument all Member States are required to establish national contact points responsible for collecting all relevant
information concerning and resulting from national criminal investigations and prosecutions with respect to terrorist offences involving listed individuals, groups or entities, and for passing that information on to Europol and Eurojust. But two Member States have not yet established their national contact points to exchange information on terrorism with Eurojust and Europol.
Looking to the future, the Commission urges all Member States to demonstrate their compliance with the Framework Decision on the execution in the European Union of orders freezing property or evidence[7] by the deadline of 2 August 2005;
The Commission calls on Member States to rapidly implement the existing legislation on maritime and aviation security, in particular Regulation 2320/2002 on civil aviation security, Regulation 1486/2003 on procedures on Commission inspections in the field of civil aviation security and the not yet published Regulation on enhancing port and ship facility security.
Draft instruments relevant to the fight against terrorism which the Justice and Home Affairs Council should adopt as a matter of priority :
Draft Framework Decision on the confiscation of crime-related proceeds, instrumentalities and property, which seeks to ensure that all Member States have effective rules governing the confiscation of proceeds of crime, including extended powers of confiscation. The Council reached political agreement on this instrument on 19 December 2002, but formal adoption has to await the lifting of constitutional and parliamentary reservations by two Member States;
Draft Framework Decision on attacks against information systems, which responds to the increasing concern at the potential threat posed by cyber-terrorism. Political agreement was reached on 28 February 2003 but parliamentary reservations are still pending by three Member States;
Draft Framework Decision on the application of the principle of mutual recognition to confiscation orders. Discussions on this instrument are nearing completion and the Justice and Home Affairs Ministers should be urged to find agreement on it at their meeting of 30 March 2004;
Draft Framework Decision on the European Evidence Warrant for obtaining objects, documents and data for use in proceedings in criminal matters[8]. This proposal applies the mutual recognition principle to obtaining certain types of evidence and thereby replaces the existing mutual assistance regime in this area.
[1] Council Framework Decision of 13 June 2002 relative on the European Arrest Warrant and surrender procedures between the Member States, JO L 190 of 18.7.2002, p.1
[2] Council Framework Decision of 13 June 2002 on the fight against terrorism, JO L 164 of 22.6.2002, p.3
[3] Council Framework Decision of 26 June 2001 on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime, JO L 182 of 5.7. 2001, p.1
[4] Council Framework Decision of 13 June 2002 on joint investigation teams, JO L 162 of 20.6.2002, p.1
[5] Council Decision of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime, JO L 63 of 6.3.2002, p.1
[6] Council Decision of 19 December 2002 on the implementation of specific measures for police and judicial cooperation to combat terrorism in accordance with Article 4 of Common Position 2001/931/CFSP
[7] Council Framework Decision of 22 July 2003 on the execution in the European Union of orders freezing property or evidence, JO L 196 of 2.8.2003, p.45
[8] COM(2003)688 of 14 November 2003
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