THE COMMON COMBAT AGAINST A CRIME YET TO BE DEFINED
In September 1992, the EC-ministers of justice and home affairs commissioned an "Ad Hoc Working Group on International Organised Crime" (AHIOC) to produce a report on judicial, police and Customs co-operation in a view to combat organised crime.
The report was approved by the ministers at their meeting at Kolding (Denmark) on 6/7 May 1993 and the mandate of the AHIOC extended for an additional six month period.
While proposing a series of concrete measures aiming at a better police and judicial co-operation in the field of organised crime, many of whom are likely to further undermine the rights of the defence, the AHIOC clearly has not agreed on a common criminological, let alone legal definition of what organised crime really is.
In an attempt to define international organised crime (i.o.c.) "from a criminological point of view", a list of o.c.-relevant elements is drawn in the report:
- Systematic cross-border criminal activity in certain "particularly lucrative" domains;
- Determination to influence the political life, the media, the economy, the public and judicial authorities;
- Considerable economic resources enabling for the purchase of "sophisticated equipment", legal advice and other expert services;
- Sufficient intellectual capacity and economic power enabling to exploit differences between the judicial systems of the EC-member states;
- Hermetical hierarchical structures making it difficult to establish links between higher and lower levels of the organisation;
- Double structures of organisation, the profits from criminal activities being invested in lawful activities of vaste networks of legal society structures masking relations with the criminal organisation;
- Strict internal discipline based on a system of reward and punishment, such structures being favoured by the common belonging to a "particular ethnic group";
- Willingness to make use of violence, including homicide, for protecting the organisation;
- Use of economical means for bribing public administration and political parties.
Yet, the report underlines that "this list is not exhaustive, not established according to an order of importance [of the different elements named above], and that not all mentioned characteristics can be found in all international criminal organisations". In other words, a criminal activity can be rated as "organised", even when it fits only part of the elements of description above.
Later in the report, the AHIOC openly admits that it has "not been able to find possibilities of formulating a common legal definition of the term of organised crime".
Judicial co-operation
In the field of judicial co-operation the AHIOC calls on the member states to ratify without reservations all conventions regarding penal affairs as an efficient means of co-operation. the report underlines the particular importance of co-operation relating to the extradition of delinquents which, it says, is for the time being hampered by legal and practicle obstacles.
This problem could be overcome through simplified and accelerated procedures, namely in the field of mutual criminal-legal assistance and more efficient communications between the judicial authorities, prosecution and police of the member states. The AHIOC proposes to establish a network of "contact points" of judicial co-operation in each member state commissioned to collect and spread information; to encourage direct contacts between local authorities concerned, and to promote the exchange, for limited periods, of magistrates of the prosecution and courts and of ministerial civil servants. The proposals could be realised in the framework of the Maastricht Treaty (title VI) or on a bi-lateral basis.
The AHIOC makes out a problem of lacking compatibility of the legislative means available in the various member states. Thus, in some countries criminal organisations are prosecuted merely under general provisions on "criminal complicity", while in others prosecution is based on particular legislation on "membership in a criminal organisation" or "association of gangsters".
In order to "lessen the risk of unintentional consequences of the absence of a common legal definition of international organised crime", the AHIOC therefore stresses the need for a better mutual knowledge of o.c. relevant law and practice in each member state.
The report further notes differences among the member states of the legal means of criminal investigation regarding practices such as searches, seizures, interception of communications, covert surveillance (including deliveries under police surveillance), active infiltration, the freezing of assets, the handling of informers, the protection of witnesses, and the reduction of sentences for "repenters" turned state witnesses. The report calls for a common effort of identification of means of action in those domains [of criminal investigation] "where the differences among legislations could have a negative effect on measures against international organised crime". [This is quite obviously a call for a harmonisation of investigation practices according to the most extensive interpretation of necessary repressive action in each member state, the whole being justified by a criminal behaviour which lacks a common legal definition. N.B.].
The AHIOC further advocates anti-i.o.c. co-operation beyond the EC, both within international fora and on a bi-lateral level.
Police and Customs co-operation
The AHIOC welcomes the work of TREVI WG III in this domain and urges i.a. for a speedy decision on the site of Europol's future headquarters; the speeding up of the preparatory work for a Europol Convention; the extension of Europol's tasks to types of "cross-border crime" other than drug trafficking; accelerated work on both an EIS (European Information System) and a CIS (Customs Information System) Convention. According to the report, ca. hundred computer terminals of the CIS are already operational throughout the EC, making agreement on a legal basis an urgent issue.
Closer and more formalised co-operation between Customs and police authorities regarding the combat against i.o.c. is stressed.
A network of "contact points" similar to the one proposed in the domain of judicial co-operation should be set up for police co-operation. Each member state should design its point of contact [A Swiss proposal that EC memebr states use their existing National Co-ordination Bureaux of Interpol as points of contact in the framework of EC-police co-operation (FECL No.15 p.1), is not commented in the report].
The AHIOC asks the ministers to consider the creation of a common scientific documentation on o.c. with eased acces for "decision-makers and practitioners".
The exchange of information is named as the most important element of police co-operation. On the international level this exchange is, for the time being, mostly taking place in the framework of Interpol and, namely, its unit on o.c.
On Community level, various fora within the TREVI structure are concerned with o.c. related issues: TREVI I (combat against terrorism), TREVI II (professional training and equipment of the police), TREVI III (organised crime/drug trafficking). A particular "Ad Hoc Group TREVI Europol" is in charge of setting up Europol, while the "Working Group TREVI 1992" is entrusted with the fulfilment of the "TREVI Programme of Action", in which "a certain number of compensatory measures to be set up in the domain of policing in relation of the free movement of persons within the Community", are named.
"An important element in this context", the AHIOC says, "has been the widening of the network of contacts - both formal and informal - set up as an integrating part, within recent years, of an ever more intensive police co-operation". This form of co-operation could be further improved by the establishment of a network of police liaison officers, as well as bilateral exchanges.
Source; Rapport du Groupe de Travail Ad Hoc sur la Criminalité Organisée Internationale destiné aux Ministres de l'Intérieure et de la Justice, 21.4.93, 28 p., in French (no reference number and place of publication mentioned).