The importance of judicial cooperation in criminal matters in the European Union with a special focus on countering EU threats and crime more effectively

Before examining the effectiveness of judicial cooperation mechanism in the fight against crime, the term ‘cross-border crime’ and term ‘judicial cooperation’ must first be defined to shed light on the nature of the problem.

The term ‘cross-border crimes’ is contained in a number of international legal acts. However, it is not directly defined. Additionally, the difference between the cross-border crimes and offences with a foreign element is not clearly explained in existing judicial legal acts adopted by the EU, nor has the same been clarified by the relevant international organisations.

In Part 2 of Article 82 of the TFEU, the term ‘criminal matters having a cross-border dimension’ is mentioned in a context of the facilitation of the mutual recognition of judgements and judicial decisions and police and judicial cooperation.

However, Part 1 of Article 83 of the TFEU provides an opportunity in the judicial acts adopted by the EU to establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis. These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.

A legal concept of cross-boundary in determining the essence of the cross-border crimes definition plays an important role. ‘Cross-border’ means the nature of the operation of certain facilities that are able to meet the interests and needs of more than one country. In this case, persons/items/services/information under one jurisdiction are physically moved across its border. However, the question of jurisdiction neighbourhood is not fundamental (Orlovska, N., Stepanova, J. (2021)).

Accordingly, the ‘cross-border’ nature of certain objects refers to an indefinite range of countries, including those that do not have a common border, as there is a cross-border movement from the country of origin through transit countries to consumer countries. And all three groups of countries are interested in the proper functioning of cross-border facilities. An important aspect of cross-border is the need for cooperation to ensure such normal functioning (Orlovska, N., Stepanova, J. (2021)). The European Border and Coast Guard Agency (FRONTEX)'s official position regarding cross-border crimes is: cross-border crime is understood as ‘any serious crime with a cross-border dimension committed at or along, or which is related to, the external borders’. FRONTEX is expected to address not only migrant smuggling or trafficking in human beings but also serious crime that adversely affects the security of the external EU borders. This may include, for instance, smuggling of stolen vehicles, drugs, firearms, tobacco products, mineral oils and alcohol (excise goods) or trafficking of hazardous materials. It could also concern environmental crime, such as waste or wildlife trafficking (Frontex).

There are no standards for cross-border crime definition in international law; therefore, broad and narrow approaches to such definition are presented in scientific sources (Orlovska, N., Stepanova, J. (2021)).

Furthermore, the definition of offences with a foreign element is not provided in judicial acts adopted by the EU. However, from the analysed international agreements in the field of cooperation in criminal matters, it is clear that the term ‘foreign element’ means a connection with the legal system of another country, where the subjects are competent institutions that realise the cooperation in criminal matters and the object is an issue related to the requested cooperation, for example, the need of obtaining the evidence as well as the location of the suspected or accused person affects the necessity to ask for assistance concerning the criminal procedure that is investigated.

A possible understanding of such definitions could be sought for in the legislation of the EU as well as in the national legislation of each Member State in the context of providing judicial cooperation in criminal procedures.

The EU is built upon the rule of law. As the foundation of European integration, the rule of law reflects a specific vision for establishing a union among the peoples of Europe. This vision is intrinsically connected to the EU's values, listed in its founding treaty and drawn from the historic inheritance of Europe. These values include – besides the rule of law – respect for human dignity, freedom, democracy, equality, and respect for human rights, including the rights of persons belonging to minorities. Without the rule of law, these values are illusory (The Helsinki Rule of Law Forum, 2022).

The mutual recognition principle was presented at the Tampere European Council in 1999 as the ‘cornerstone’ of the European judicial area and confirmed in the draft Constitution, and its vital importance is recognised in the Hague Programme, which links its development to enhanced mutual trust between the Member States (Communication from the Commission, 2005).

The strengthening of the area of justice, freedom and security has been continued through the implementation of the Stockholm Programme (2010), whose aims were to meet future challenges and further strengthen the area of justice, freedom and security with actions focussing on the interests and needs of citizens.

The Stockholm Programme's aims were to facilitate the free movement of EU citizens and residents by defending and respecting all the rights and obligations deriving from a European area of justice, and that judicial cooperation represented the main tool for achieving this objective. It recognises that initiatives in the field of the mutual recognition of legal situations, judgements and documents play a very important role in this respect, as mutual recognition leaves the legal systems of Member States unchanged but reduces financial and bureaucratic burdens and legal obstacles for citizens, families and businesses exercising their Treaty freedoms, while also respecting the rule of law and fundamental rights (Report A7-0153/2014. 2014).

The principle of mutual trust between authorities and services in the different Member States and decision-makers is the basis for efficient cooperation in this area. Ensuring trust and finding new ways to increase reliance on, and mutual understanding between, the different legal systems in the Member States will thus be one of the main challenges for the future (the Stockholm Programme 2010).

The goal to build an area of freedom, security and justice without internal borders in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime is determined in Article 2 of the Lisbon Treaty (Lisbon Treaty (EU) 2007).

The idea is to have an affirmation in place that the principle of mutual recognition is founded on mutual trust developed through the shared values of the Member States concerning respect for human dignity, freedom, democracy, equality, the rule of law and human rights, so that each authority has confidence that the other authorities apply equivalent standards of protection of rights across their criminal justice systems (Council Conclusions 2018).

Continuation of the development of the justice area is determined in the Regulation (EU) 2021/693 of the European Parliament and of the Council of 28 April 2021 establishing the Justice Programme and repealing Regulation (EU) No 1382/2013 (Justice programme (2021–2027)) (Regulation (EU) 2021/693. 2021). Thus, recital 2 of this regulation foresees that values continue to be actively cultivated, protected, promoted, enforced and shared among the citizens and peoples and that they remain at the heart of the Union project, […]. The above confirms the readiness of the EU to further develop the area of the rule of law including the system of judicial cooperation in criminal matters.

In accordance with the provision determined in Part 2 of Article 82 of the TFEU, judicial cooperation in criminal matters is divided into two kinds of cooperation, namely mutual recognition of judgements and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension. During the police and judicial cooperation, the institute of the mutual legal assistance, as well as the mutual recognition principle, is applied.

International instruments on judicial cooperation in criminal matters are designed to facilitate and accelerate the cooperation between enforcement authorities in different countries. The EU legislator pursues these goals by grounding the cooperation system on the principles of mutual trust and mutual recognition. The principle of mutual recognition of judicial decisions concerning the enforcement of judgements in criminal cases was established realising the Tampere, the Hague and the Stockholm programmes.

At the moment, various types of mutual recognition instruments are adopted by the EU.

- Mutual recognition in extradition – Council Framework Decision 2002/584/JHA on the European Arrest Warrant (EAW) and the surrender procedures between Member States remains one of the most effective legal instruments in this area. There are also various other legal instruments, some of which are used relatively often, e.g. mutual recognition in sanctions: Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties, Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgements in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union, while others are used less frequently such as Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgements and probation decisions with a view to the supervision of probation measures and alternative sanctions and Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention.

Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters replaces conventional mutual legal assistance with a cooperation mechanism based on mutual recognition as regards, in particular, obtaining evidence. Regulation (EU) 2018/1805 of the European Parliament and of the Council of 14 November 2018 on the mutual recognition of freezing orders and confiscation orders and the new proposal for a Regulation on European Production and Preservation Orders for electronic evidence in criminal matters will further complement the EU's mutual recognition instruments for judicial cooperation in criminal matters (Note of the Council 2019).

In the Eurojust Report on the Transfer of Proceedings in the European Union, it is mentioned that there is currently no specific legal instrument on transfer of proceedings at the EU level (Eurojust Report, 2023). Framework Decision 2009/948/JHA on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings (Framework Decision 2009/948/JHA, 2009) only sets out a mandatory consultation procedure for competent national authorities when parallel proceedings concerning the same facts involving the same person are being conducted in another Member State, but it does not regulate the subsequent transfer of proceedings that may occur after an agreement has been reached on who is best placed to prosecute the case. In December 2020, the Council, in its conclusions on the EAW, invited the Commission to consider whether a new proposal for an EU instrument on the transfer of proceedings would be feasible and presently add value. This initiative was thus included in the Commission work programme for 2022 (Commission work programme, 2021), with a call for public consultation concluded and the adoption of the legislative proposal expected soon.

Mutual legal assistance as a part of judicial cooperation in criminal matters is an important element of the rule of law in the EU. Mutual legal assistance mechanisms are progressively being replaced by mutual recognition instruments. However, one agreement between EU countries is still in place: the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union (Convention (EU) 2000). As is mentioned in Recital 1 of the Preamble, the convention was established for the purposes of achieving the objectives of the Union where the rules on mutual assistance in criminal matters between the Member States of the EU should be improved. In the EU, the convention was the first instrument developed to meet the demands arising in the field of judicial cooperation (Explanatory Report, 2000). Despite existing mutual recognition instruments, such as the European Investigation Order, the convention is still applied by Member States in cross-border criminal proceedings where procedural actions, for instance, the documents service, taking of evidence, interception of telecommunications, etc., are requested.

Considering that in accordance with Article 82(1) of the TFEU, judicial cooperation in criminal matters in the Union is based on the principle of mutual recognition of judgements and judicial decisions, the crucial role of practical implementation and application of the judicial cooperation instruments is the responsibility of the judges, prosecutors and others practitioners. The principle of mutual recognition is founded on mutual trust developed through the shared values of the Member States concerning respect for human dignity, freedom, democracy, equality, the rule of law and human rights, so that each authority has confidence that the other authorities apply equivalent standards of protection of human rights across their criminal justice systems (Council conclusions, 2018).

The issue of common understanding of the application of the judicial cooperation instruments is founded in Court of Justice of the European Union (CJEU) case law. For instance, the General Secretariat of the EU in its final report on the 9th round of mutual evaluations on mutual recognition legal instruments in the field of deprivation or restriction of liberty stated that from the perspective of and within the boundaries set by CJEU case law (C-404/15 Aranyosi and Căldăraru, CJEU C-220/18 ML and C-128/18 Dorobantu), in most Member States, the executing authorities carry out a specific assessment of the risk of inhuman or degrading treatment, within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union, exceptionally and on the basis of a two-step test. Systemic risk should not be considered as sufficient; instead, there is a requirement for real exposure to a risk of violation of fundamental rights, to be ascertained with regard to the specific circumstances of the particular case (Note of General Secretariat of the Council, 2023).

The elements to be taken into account by the national judicial authorities as regards detention conditions have been defined by the CJEU in its judgement in Dorobantu (C-128/18) and refer to certain physical aspects of prison facilities in accordance with the standards set out by the European Convention on Human Rights (ECHR). In cases where there are reasonable grounds to believe that the person sought might be subject to inhuman or degrading penitentiary treatment, the executing judicial authority requests the necessary additional information on the actual conditions in which the individual concerned will be detained in the issuing Member State, pursuant to Article 15(2) of Framework Decision 2002/584/JHA (Note of General Secretariat of the Council, 2023).

Considerations related to detention conditions may lead to delays in the EAW proceedings, especially if the competent issuing authority does not have sufficient information to reply within a reasonable time.

The General Secretariat of the Council of the European Union underlined that Member States do not apply the abovementioned CJEU case law on the basis of a uniform interpretation and approach because most member states assess ex officio if there are reasonable indications for inhuman or degrading detention conditions, regardless of whether the person concerned consents to the surrender or not (Note of General Secretariat of the Council, 2023).

Several evaluation teams pointed to a need at the EU level to clarify the CJEU jurisprudence in this respect. Thus, the General Secretariat of the Council of the European Union, based on these evaluation teams’ suggestions, invited the European Commission to consider issuing guidelines on how to deal with judgements taken by the CJEU in a mentioned case law, thereby facilitating the common understanding and interpretation by Member States of the application and implementation of the judicial cooperation legal acts (Note of General Secretariat of the Council, 2023).

In the context of identification of the issues pertinent to the practical application by Member States of legal acts adopted by the EU, it is important to note that with the aim of evaluating Member States on the basis of equality and mutual confidence, the implementation by each of them of instruments of cooperation intended to combat international organised crime, of a specific mechanism for peer evaluation of the application and implementation of other international acts and instruments applying to criminal matters at the national level of the EU, of the resulting legislation and practices at the national level and of international cooperation actions in the fight against organised crime in the Member States has been established in accordance with Joint Action of 5 December 1997 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, establishing a mechanism for evaluating the application and implementation at national level of international undertakings in the fight against organized crime (97/827/JHA) (Joint Action, 1997).

From the final report on the 9th round of mutual evaluations on mutual recognition of legal instruments in the field of deprivation or restriction of liberty prepared by the General Secretariat of the Council, it is concluded that various issues—notably of a practical nature—can impair mutual trust, and that an ongoing effort is therefore required to foster and enhance this trust. In accordance with the Council conclusions on mutual recognition in criminal matters ‘Promoting mutual recognition by enhancing mutual trust’ (2018/C 449/02), the Council of the European Union has adopted various types of conclusions by going from the specific to the practical improvements of judicial cooperation in the field of mutual recognition of judgements and decisions.

Thus, the Council of the European Union in its conclusions reminded the Member States that in accordance with the case law of the CJEU, a refusal to execute a decision or judgement that has been issued on the basis of a mutual recognition instrument can only be justified in exceptional circumstances, and taking into account that by virtue of the principle of primacy of EU law, Member States cannot demand a higher level of national protection of fundamental rights from another Member State than that provided by EU law. Consequently, any case for non-execution based on an infringement of fundamental rights should be applied restrictively, following the approach developed by the CJEU in its case law (Council conclusions, 2018).

Additionally, Member States and the Commission are encouraged to promote continuous training of judges, prosecutors and other practitioners, including in the field of fundamental rights in criminal proceedings, as this can enhance the application of the EU instruments based on mutual recognition, to foster mutual trust amongst the constituents of the European judicial area through the organisation of judicial training seminars and exchanges (Note of General Secretariat of the Council, 2023).