Local view for "http://purl.org/linkedpolitics/eu/plenary/2001-11-28-Speech-3-108"
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Madam President, ladies and gentlemen, first of all, I wish to congratulate Mrs Gebhardt on her report on the creation of the Eurojust unit. The ideas that the Commission expressed on this matter in its communication of November 2000 and the recommendations adopted by the European Parliament in May of this year, following the report by Mrs Gebhardt, are, to a large extent, echoed in the text that is now being studied by the Council.
With regard to the third issue, that of penalties and sanctions, I would say that this is still the main problem with the framework decision, given the lack of consensus on a common level of penalties and sanctions for individual terrorist offences. The Commission is not yet satisfied with the approach that is currently applied for individual offences, under which the penalties and sanctions applicable to terrorist offences committed by individuals would not be harmonised. Instead, weightier penalties and sanctions than those provided for under national legislation for the same offences committed without the special intention required for classification as terrorist acts would apply. If we limit our ambitions in this way, we will not be fulfilling the mandate laid down in the Article 31(e) of the Treaty, nor will we be following the recommendation contained in the Watson report. Furthermore, we would be acting inconsistently since, in previous instruments, we have managed to adopt common penalties and sanctions for the counterfeiting of the euro, for assisting illegal immigration and the trafficking of human beings, and it would be inexplicable not to be equally ambitious when it comes to punishing terrorist acts. I hope that it is possible to find a solution on the basis of the proposal that the Commission presented on creating a range of penalties and sanctions for the individual offences listed in Articles 1 and 2 of the Commission proposal, with greater flexibility to adapt them to the scale of penalties in force in the national legislation of each Member State.
Lastly, this framework decision stipulates that the Member States must adopt all possible measures to guarantee appropriate assistance to the families of victims, implementing, where possible, Article 4 of the Framework Decision on the Status of Victims in Connection with Criminal Proceedings. This approach is entirely consistent with Parliament’s point of view.
Madam President, ladies and gentlemen, the second framework decision, on the European arrest warrant, must be based on the principle of the mutual recognition of final decisions in criminal matters, in line with the conclusions of the Tampere European Council of October 1999, and with the recommendation made to us by the Heads of State and Government at the Ghent European Council of October this year. The text we are now discussing, submitted by the Presidency, includes a positive list of offences for which a double jeopardy verification does not have to be carried out. As you know, the Commission proposal that is being discussed today seeks to make the abolition of the double jeopardy rule universal, with the exception of a negative list identified by the Commission. Since the Ghent European Council, it has become clear that this approach by the Commission would not have majority support in Council. Hence the Presidency has moved ahead with a compromise proposal, which assumes that the execution of an arrest warrant for offences included in the positive list does not require double jeopardy verification. The Commission is prepared to support this compromise proposal by the Presidency provided that the definition of offences included on this positive list is substantial and that it sends a clear, unequivocal message that we are strengthening the mechanisms of judicial cooperation to fight against the various forms of transnational organised crime. In order to ensure that the mechanism of the positive list works and is effective, the definition of the offences on this list must respect the definition of these offences in force in the legislation of the Member States issuing a search and arrest warrant. This is an essential component. Unless this component is complied with, the double jeopardy condition would also be reintroduced for these offences, which is exactly what we are trying to avoid.
I think that we are approaching an agreement on the content of the positive list. However, at the moment, this agreement is not yet completely signed and sealed. I hope that, by the Council of 6 and 7 December, it will be possible to conclude a unanimous agreement on a substantial positive list that fulfils the objective of a mechanism for an effective European arrest warrant that can be implemented in a straightforward way.
Regarding the last aspect that I wish to focus on, the Commission has included in its proposal a set of rules that are intended to reconcile effectiveness in the fight against crime, on the one hand, and the protection of citizens’ rights and fundamental freedoms on the other. I hope that the Council resists the temptation to remove provisions that offer protection on the grounds that they are not necessary, since the Member States are, in any event, bound to respect legal safeguards. It is true that one of the essential elements for the creation of this mechanism is the principle of mutual trust that has resulted from the Member States signing up to the Council of Europe’s European Convention of Human Rights of 1950 and from having jointly proclaimed the Charter of Fundamental Rights of the European Union in December of 2000. I would say, however, that it is, nevertheless, important to emphasise some specific mechanisms that should be included in this framework decision in order to guarantee and safeguard the fundamental rights of our citizens. Other amendments along the same lines consist of bringing the wording of the
rule, laid down in Article 29 of the Commission’s proposal, into line with the wording of Article 50 of the European Union Charter of Fundamental Rights so as to obviate the requirement for the arrest warrant to be accompanied by proof that the individual has been duly informed of the procedure in time to prepare a defence in the event that he or she is sentenced in absentia. Another good example of these rules is the deduction of the period of deprivation of liberty from the punishment laid down in Article 24 of the Commission proposal, which states that the period of detention in the Member State executing the warrant must be taken into account for the purposes of calculating compensation in the event that the individual surrendered is not convicted. There must be a balance between the need for speed and effective cooperation between judicial authorities and the interests of individuals, who must not be subjected to additional or excessive constraints or have their ability to mount a defence hampered. The Commission feels that it would be desirable, where the identification of the laws and principles that safeguard fundamental rights in a European judicial area is concerned, to extend these rules. The Commission realises, therefore, that it would be desirable to pursue the task of approximating legislation on criminal proceedings in the Member States. We must, simultaneously, guarantee the effectiveness of prosecutions and the safeguarding of the rights of individuals. It may, therefore, prove necessary at Union level to address, in a more concerted way, the right to language assistance, the proper treatment of evidence and the issue of the courts’ bail system. The Commission is considering the possibility of issuing a communication on these aspects that could cover a huge range of factors. These issues require a horizontal approach and, therefore, we propose finalising them at a later date in a specific mechanism.
Madam President, ladies and gentlemen, I shall conclude by referring to Mr Watson’s proposal for an oral amendment that was tabled here today. Now that we are debating the Commission’s position, we must step up negotiations to conclude an agreement supported by all fifteen Member States. Not an agreement at any price, but an agreement that responds to the challenge of the fight against terrorism and organised crime before us. We also welcome the Belgian Presidency’s commitment to obtaining this agreement. I also wish to make it clear, however, that, where the European arrest warrant is concerned, an agreement can certainly be concluded on the list of thirty-four offences to which Mrs Neyts-Uyttebroeck has just referred. I must also clearly state that the list does not include minor offences because this is a list annexed to the Europol Convention. I would also say that, if these offences are considered to be offences that warrant police cooperation under the terms of Europol, they must also be considered to be unquestionably serious for the purposes of judicial cooperation in criminal matters. Regardless of national legal cultures and regardless of the moral censure that a particular offence might generate at national level, I am convinced that the option we should pursue at the moment is to conclude an agreement with all fifteen Member States, a substantial agreement on the list of offences to which the European arrest warrant should apply. If this agreement cannot be concluded with all fifteen countries, we will then have to consider what to do next.
I shall, therefore, limit myself to emphasising two or three aspects in greater detail. Firstly, as Mrs Gebhardt stated, in the version currently under examination, the rules on the protection of personal data have been extended and improved. The draft document adopts a balanced approach that respects both the legitimate interests and fundamental rights of Europe’s citizens and the need for the effective coordination of investigations and prosecutions. There will be an independent joint supervisory body for data protection and, if necessary, legal solutions will be provided for appeals to be lodged in national courts.
Secondly, the role of the Union’s institutions has been strengthened and the Commission is fully involved in the work of Eurojust in its various areas of responsibility. Parliament will be kept fully informed of the budgetary issues and I hope that it will also be given the task of discharging the budget.
Mrs Gebhardt’s excellent report also includes a list of supplementary amendments, most of which meet with the Commission’s approval. I shall only mention the examples of the amendments concerning membership of the joint supervisory body for personal data, cooperation with OLAF, the Commission’s anti-fraud body, and Eurojust, Parliament’s discharge of the budget, the time limits for the storage of data and the law applicable in the event of damage resulting from incorrect data processing. I hope that the Council will also bear these suggestions in mind.
Madam President, ladies and gentlemen, with regard to the other two initiatives under consideration, the events of 11 September 2001 have, I am sad to say, confirmed the validity of the recommendations adopted by the European Parliament on 5 September 2001, following an own-initiative report drawn up by Graham Watson. As Commissioner responsible for Justice and Home Affairs, I wish to congratulate and pay public tribute to Mr Watson, the Chairman of Parliament’s Committee on Citizen’s Freedoms and Rights, Justice and Home Affairs, whose efforts and name will always be associated with this initiative of enormous political scope; the fight against terrorism and against crime in the European Union.
The recommendations in the Watson report, published in September, were, to a large extent, taken into account in the proposals presented by the Commission on 19 September which are now being studied by the Council. I wish firstly to discuss the proposal for a framework decision on combating terrorism. The Council debate on this proposal has focused on the three most important and, at the same time, most problematic issues: defining terrorist crime, clarifying the rules of jurisdiction for the prosecution of terrorist acts and the framework of penalties and sanctions applicable to terrorist acts.
With regard to definition, there has been concern to ensure that the framework decision cannot, under any circumstances, apply to legitimate action, for example in the context of the activities of unions or anti-globalisation movements. The Commission has subscribed to this interpretation from the outset and considers that the solution we are working towards respects the basic structure of the Commission’s initial proposal, which is to, “define a terrorist offence on the basis of the identification of an objective factor: the terrorist act, accompanied by the identification of a subjective element: a terrorist motivation under the terms of the proposal”. This is the text currently under consideration by the Council. At the same time, the solution also provides more detail on allowing the requirements that must be met for the offence included in the positive list to be considered a terrorist offence, to be identified in legislation itself. We are, therefore, in favour of improving the definition contained in the text currently being studied by the Council.
This aspect, in fact, provides a further guarantee: no common crime, not even acts of violence committed incidentally in the context of certain demonstrations, will be covered by the instrument to eliminate terrorism. The Council is currently considering the possibility of issuing a statement explaining that anyone acting in the interest of preserving or restoring democratic values, instances of which occurred in some Member States during the Second World War, cannot be considered to be a terrorist. This aspect is in line with some of the amendments tabled by Parliament to ensure that the fundamental rights and freedoms on which our countries are founded cannot, under any circumstances, be endangered by the present framework decision.
With regard to jurisdiction, the debate in the Council is close to reaching a solution that is very similar to the one recommended in the amendments tabled by the European Parliament. There is consensus in Council on a balanced formula that combines the Commission’s initial proposal and the more ambitious project suggested by some Member States and by Parliament on national jurisdictions being extended to cover the entire territory of the Union. Consequently, Member States can
if they so desire, extend their jurisdiction if the offence has been committed in any part of the Union’s territory."@en1
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