Faculty of Law, Pan-European University, Bratislava, Slovak Republic
The chapter deals with the issuing procedure of the European arrest warrant. It is divided into seven sections and is summarised with concluding observations. While Sect. 6.1 briefly describes alternatives of issuing, Sect. 6.2 deals with ‘standard’ issuing and Sect. 6.3 analyses in detail issuing without verification of the double criminality of the offence. Special attention is focused on the conditions for issuing the European arrest warrant and to the analysis of the categories of offences what do not require the double criminality of the offence. Further, Sect. 6.4 deals with the proportionality test prior the issuing the European arrest warrant. Section 6.5 is focused on the form and the content of the EAW. While Sect. 6.6 analyses its transmission, Sect. 6.7 deals with its translation.
A key feature of the European arrest warrant is the inclusion of a list of offences for which the principle of double criminality is abolished.1 (Mark Mackarel)
6.1 Alternatives of Issuing: A Brief Overview
As introduced, the EAW is the European procedural instrument for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.
The Framework Decision on the EAW introduced two possible alternatives for issuing the EAW. An EU Member State may issue an EAW in two different scenarios2:
an EAW may be issued for, first, an offence punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, second, where a sentence has been passed or a detention order has been made, for sentences of at least 4 months 3; in such instances, the executing State may impose the dual criminality requirement that requires the offence that has given rise to the warrant to be an offence in both states, i.e. in the issuing State as well as in the executing State;
an EAW may be issued for a one of 32 categories of offences, if they are punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 3 years and as they are defined by the law of the issuing Member State4; in such cases, the dual criminality requirement shall not apply.
The first alternative can be named as ‘standard’ issuing. The second alternative can be named as issuing without verification of the double criminality of the offence. Both are analysed in the following sections.
6.2 ‘Standard’ Issuing
As far as standard issuing is concerned, in connection to aforementioned, an EAW can be issued in two cases, namely for5:
existing offence punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months, or
a sentence has been passed or a detention order has been made, for sentences of at least 4 months.
In such instances, the executing state may impose the dual criminality requirement. Surrender of a requested person may be subject to the condition that the offence for which the EAW has been issued constitutes an offence under the law of the executing Member State. Thus, the dual criminality requirement is applied—an act must be offence under the law of both states, i.e. in the issuing State as well as in the executing State.
6.3 Issuing Without Verification of the Double Criminality of the Offence
A key feature of the EAW is the inclusion of a list of 32 offences for which the principle of double criminality is abolished.6 Having regard to the softened double criminality requirement, the double criminality of 32 offences is not checked by the judicial authority of the executing Member State which is competent to execute the EAW. For issuing an EAW without verification of the double criminality of the act must be fulfilled following cumulative conditions:
the offence is on the list of 32 categories of offences referred to in the Framework Decision on the EAW (hereinafter ‘list of 32 offences’7; in literature known also as ‘32 mutual recognition offences’ or abbreviated ‘32 MR offences’,8 or ‘double criminality list’9),
the offence is punishable in the issuing Member State by a custodial sentence or a detention order,
maximum period of a custodial sentence or a detention order takes at least 3 years, and
the offence is defined by the law of the issuing Member State.
The list of 32 offences is a key feature of the surrender procedure as well as of the EAW. It covers following offences10:
participation in a criminal organisation;
trafficking in human beings;
sexual exploitation of children and child pornography;
illicit trafficking in narcotic drugs and psychotropic substances;
illicit trafficking in weapons, munitions and explosives;
fraud, including that affecting the financial interests of the EC within the meaning of the Convention on the protection of the European Communities’ financial interests11;
laundering of the proceeds of crime;
counterfeiting currency, including of the euro;
environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties;
facilitation of unauthorised entry and residence;
murder, grievous bodily injury;
illicit trade in human organs and tissue;
kidnapping, illegal restraint and hostage-taking;
racism and xenophobia;
organised or armed robbery;
illicit trafficking in cultural goods, including antiques and works of art;
racketeering and extortion;
counterfeiting and piracy of products;
forgery of administrative documents and trafficking therein;
forgery of means of payment;
illicit trafficking in hormonal substances and other growth promoters;
illicit trafficking in nuclear or radioactive materials;
trafficking in stolen vehicles;
crimes within the jurisdiction of the International Criminal Court12;
unlawful seizure of aircraft/ships; and
The Council of the EU may decide at any time to add other categories of offence to the list of 32 offences. It shall examine whether it should be extended or amended.13 For offences other than those covered on the list, surrender may be subject to the condition that the acts for which the EAW has been issued constitute an offence under the law of the executing Member State, whatever the constituent elements or however it is described.14
As pointed out by Murphy, nonetheless the Framework Decision on the EAW uses the language ‘without verification of the double criminality of the act’ certain Member States have adopted implementing laws that require verification.15 In case of Italy there was reintroduction of double criminality checks in respect of the entire in respect of the entire list of 32 offences, in Belgium, Slovenia and the United Kingdom in respect of a single category—where part of the offence is committed in its national territory, and in case of Poland systematically for nationals.16
In case of comparison the EAW and the European evidence warrant it should be noted that the Framework Decision 2008/978/JHA on the European evidence warrant […]17 uses more stringent language to afford less discretion to national legislatures when implementing the legislation. The dual criminality requirement is almost entirely abolished by the evidence warrant. The Framework Decision 2008/978/JHA on the European evidence warrant […] is stronger than its predecessor—the Framework Decision on the EAW—declaring that evidence warrants requiring search and seizure for such offences ‘shall not be subject to verification of double criminality under any circumstances’.18 , 19
6.3.2 ‘List of 32 Offences’: Categories of Offences
On the one hand, some of the categories of crimes on the list of 32 offences are readily identifiable as criminal offences and share common, if not identical requirements for their commission throughout the Member States. On the other hand, others are—more or less—vague.
Pursuant to the title and the elements of crime, the categories of crimes on the list of 32 offences can be divided into four groups20:
the offences with the same title and containing almost the same elements of crime,
the offences with similar title, however containing almost the same elements of crime,
the offences with identical title, however containing different elements of crime, and
the ‘unknown offences’ for some EU Member States.
The first group includes the offences with the same title and containing almost the same elements of crime. They can be considered as typical throughout all EU Member States. Such an offence is for instance ‘murder’—the unlawful killing of another human,21 in particular intentionally, with malice aforethought. Murder is perhaps the single most serious criminal offense all around the world. The other example is ‘kidnapping’. In principle, the interpretation of these offences does not met difficulties.
The second group includes the offences with similar title, however containing almost the same elements of crime—possibly affected by harmonisation at the EU level. Similarly to the first group, they can be considered as typical throughout all EU Member States. Such offences are for instance: ‘trafficking in human beings’ known as well as human trafficking; ‘illicit trafficking in narcotic drugs and psychotropic substances’ known as well as drug trafficking or trafficking in drugs; ‘laundering of the proceeds of crime’ known as well as money laundering; ‘computer-related crime’ known as well as computer crime, cyber-crime, computer-assisted crime, high-tech crime, virtual crime or e-crime; or ‘forgery of means of payment’ known as well as forgery of money and means of payment. Similarly to the first group, in principle, the interpretation of these offences does not met difficulties.
In the third group there are the offences with identical title, however containing different elements of crime. Prime examples are ‘rape’ and ‘fraud’. As far as ‘rape’ is concerned, in some legal systems (for example, in England, Wales or France) one or more genital organs (of the victim and/or of the perpetrator) or the anus must be involved in order for the penetration to amount to rape. German law does not have such a requirement, and in the Dutch criminal law any sexually motivated penetration suffices. In the case of conflict, in the opinion of Keijzer, judicial authorities must apply the narrower interpretation. He argues that, if, for example, a British judicial authority receives an EAW from the Netherlands in relation to an enforced ‘French kiss’, it is therefore entitled to refuse its execution, such conduct not falling within the category ‘rape’.22 Contrary to his opinion, in our opinion a British judicial authority is not entitled to refuse the execution of the EAW. Pursuant to the aforementioned conditions for issuing an EAW without verification of the double criminality of the offence and pursuant to the wording of the Framework Decision on the EAW, the offences on the list of 32 crimes ‘… if they are punishable in the issuing Member State…’ shall ‘… without verification of the double criminality of the act…’ give rise to surrender.
The fourth group includes the ‘unknown offences’ for some EU Member States. Pursuant to the principle nullum crimen sine lege, a domestic law is silent or not applicable. As regards ‘unlawful seizure of aircraft/ships’, in Spanish law it is not an offence. Moreover, ‘illicit trade in human organs and tissue’ is not typified there as a crime itself. Lithuania has not criminalised ‘illicit trafficking in hormonal substances and other growth promoters’. ‘Swindling’ is unknown in English or Scots law.
6.3.3 ‘List of 32 Offences’: Offences Harmonised at the European Union Level
In the area of mutual recognition, in the opinion of De Bondt, Vermeulen and Van Damme, the list of 32 offences has great potential.23
On the contrary, in the opinion of Mackarel, in seeking to accommodate offences under the criminal laws of the EU Member States, the Council of the EU have drawn the categories of offences very wide.24 In addition, Boháčik considers the list of 32 crimes as the most problematic issue of the Framework Decision on the EAW. He argues that the categories of offences have not been harmonised.25
Moreover, a Belgian non-profit-making association Advocaten voor de Wereld (eng. Lawyers for the World) argued that on the list of 32 offences there are offences not having a sufficiently clear and precise legal content, but only vague categories of undesirable behaviour. The judicial authority which must decide on the enforcement of an EAW will, it submits, have insufficient information to determine effectively whether the offences for which the person sought is being charged, or in respect of which a penalty has been imposed on him, come within one of the categories of the offences. The absence of a clear and precise definition of the offences leads to a disparate practice by the various authorities responsible for the enforcement of an EAW and, by reason of that fact, also infringes the principle of equality and non-discrimination26 (details see Chap. 11, Sect. 11.1).
Contrary to the all negative viewpoints, the European Commission observed that the criticised list of 32 offences did not cause any particular difficulties in implementation by Member States. As it argues, there are no major difficulties at this stage with the transposal of the list of 32 categories of offence for which double criminality is abolished.27
A series of offences on the list of 32 offences have been harmonised. A decade ago, the European Commission argued that by defining common offences and penalties in relation to certain forms of crime, the EU would be putting out a symbolic message. It would be a clear signal that certain forms of conduct are unacceptable and punished on an equivalent basis. In addition, the corollary of a European area of justice would be that the same criminal conduct incurs similar penalties wherever the offence is committed in the EU. The approximation of legislation is accordingly an autonomous objective in areas regarded as deserving priority and identified as such. A degree of approximation of provisions of substantive criminal law is needed since certain forms of crime have a transnational dimension and the EU Member States cannot combat them effectively on their own.28
Over a decade ago, the idea of harmonising national Criminal law among EU Member States is not new and several international instruments had been adopted. However, the process of harmonisation advanced with a slower pace, either through international conventions or through spontaneous convergence of national laws, seldom guided by international legal instruments without binding effects.29
As explained in the third chapter of this work, in the area of substantive criminal law the EU adopted framework decisions for the approximation of a wide series of offences, introducing minimum rules concerning the constituent elements of crimes and penalties.30 They were adopted in the Third Pillar era in order to harmonise them throughout all EU Member States. Thus, they have ‘harmonised by means of approximation’ series of crimes/offences at the EU level. In addition, some crimes/offences were harmonised by means of the conventions.
The Framework Decision on the EAW does not seek to harmonise the categories of offences on the list of 32 offences in respect of their constituent elements or of the penalties which they attract.31 However, there has been an attempt to harmonise them in case of negotiating the European evidence warrant. During the legislative process of the Framework Decision 2008/978/JHA on the European evidence warrant […]32 Germany touched upon the fact that there are no common definitions of the offences on the list of 32 crimes. It is the law of the issuing state that defines these crimes. Germany asked to come up with real common definitions and as a consequence made some suggestions to solve this problem. Among others, the horizontal approach with definitions that would also be valid for the other mutual recognition instruments was unacceptable for most of the Member States. Further, the introduction of definitions that would only apply to cases that fall within the scope of the Framework Decision on the European evidence warrant […] was not successful either.33 Thus, in case of negotiating the European evidence warrant the attempt to harmonise the offences on the list of 32 offences has not been successful.
The offences on the list of 32 offences have never been harmonised at the EU level as a united ‘piece of work’. Nonetheless, as shown, a series of offences on the list of 32 offences have been harmonised. At the EU level some of them are considered as ‘Euro crimes’.34 On top of that, some legislative proposals explicitly called for their precise definitions in connection to the EAW.35 In the following text are analysed following 13 categories of offences:
participation in a criminal organisation,
trafficking in human beings,
sexual exploitation of children and child pornography,
illicit trafficking in narcotic drugs and psychotropic substances,
laundering of the proceeds of crime,
counterfeiting currency, including of the euro,
fraud affecting the financial interests of the EC,
forgery of means of payment,
racism and xenophobia,
Prior their analysis, two important remarks should be emphasised. First, the UN and the Council of Europe have introduced conventions harmonising almost all of them, generally prior to the EU. Thus, taking into account legislation of the EU and the conventions of the Council of Europe, one could observe their ‘double criminalising’ or even ‘triple criminalising’. However, the legislation of the OSN and the Council of Europe has been excluded of analysis. Second, as regards EU legislation is concerned, analysing each of offences, only flagship legislative documents are mentioned.
18.104.22.168 Participation in a Criminal Organisation
Up until the mid-1980s organised crime was considered a problem that concerned only a limited number of countries—primarily the United States of America and Italy, with the eventual addition of Japan, China and Colombia. Twenty years later, the picture has changed dramatically, particularly in Europe.36
Nowadays, in the light of the Treaty on the functioning of the EU organised crime is considered as particularly serious crime with a cross-border dimension.37 Organised crime control acquired a growing relevance in EU foreign policy.38 Moreover, disrupt international crime networks has recently been marked as the first of five strategic objectives for internal security.39
At the EU level, the leading legislative measure harmonising organised crime is the Framework Decision 2008/841/JHA on the fight against organised crime.40 The aim of the Framework Decision is to harmonise Member States’ definitions of crimes related to a criminal organisation and to lay down corresponding penalties for these offences.
As far as offences relating to participation in a criminal organisation are concerned, the Framework Decision does not specify offences what are recognised as such as offences. Instead, there are two types of conduct of which must be recognised at least one as an offence in national legislation. Thus, each EU Member State shall take the necessary measures to ensure that one or both of the following types of conduct related to a criminal organisation are regarded as offences41:
conduct by any person who, with intent and with knowledge of either the aim and general activity of the criminal organisation or its intention to commit the offences in question, actively takes part in the organisation’s criminal activities, including the provision of information or material means, the recruitment of new members and all forms of financing of its activities, knowing that such participation will contribute to the achievement of the organisation’s criminal activities;
conduct by any person consisting in an agreement with one or more persons that an activity should be pursued, which if carried out, would amount to the commission of offences which are punishable by deprivation of liberty or a detention order of a maximum of at least 4 years or a more serious penalty, committed to obtain a financial or other material benefit, even if that person does not take part in the actual execution of the activity.
In addition, each EU Member State shall take the necessary measures to ensure that the fact that these offences, as determined by this Member State, committed within the framework of a criminal organisation may be regarded as an aggravating circumstance.42
The term criminal organisation, for the purposes of the Framework Decision, shall mean a structured association, established over a period of time, of more than two persons acting in concert with a view to committing offences which are punishable by deprivation of liberty or a detention order of a maximum of at least 4 years or a more serious penalty, to obtain, directly or indirectly, a financial or other material benefit. The term structured association shall mean an association that is not randomly formed for the immediate commission of an offence, nor does it need to have formally defined roles for its members, continuity of its membership, or a developed structure.43
Prior to the adoption of the Framework Decision, the European Commission had expected that it would be a major step forward in the fight against the most serious forms of crime.44 However, the contrary is reality. As argues Calderoni, the definition of organised crime by the Framework Decision is uncertain and vague, and that this makes it a poor instrument with little added value for the approximation of criminal legislation against organised crime. His criticism is based on both legal and criminological arguments, since the Framework Decision appears to be flawed from both perspectives.45 Moreover, he argues that the definition of criminal organisation ‘does not work’.46
22.214.171.124 Trafficking in Human Beings
Worldwide, trafficking in human beings is considered one of the most serious crimes. It is a prime example of human rights violation. Nowadays, it is a term that is used for modern-day slavery.47 Aronowitz argues that it can be viewed as a process rather than a single offence.48 Although trafficking affects both men and women, women are affected in different ways than men with respect to the types of trafficking they are subjected to, the forms of abuse they suffer and the consequences thereof. Women are, for example, more likely to end up as domestic workers, au-pairs or in the entertainment and sex industry, while men are more often trafficked into the construction sector or agricultural work. At times of armed conflict, women and girls are particularly at risk of sexual violence, forced prostitution and trafficking.49
The EU Charter explicitly prohibits trafficking in human beings.50 On the contrary, it is reasonable to estimate from the available figures that every year several hundred thousand people are trafficked into the EU or within the EU area.51 The Treaty on the functioning of the EU lists the list of areas of particularly serious crime with a cross-border dimension. Trafficking in human beings is on that list as the second crime (together with sexual exploitation of women and children).52 Preventing and combating trafficking in human beings is a priority for the EU and it Member States. This approach refers to the normative framework of already existing regional and international human rights law obligations, as well as developing jurisprudence in this field.53
The leading legislative measure harmonising trafficking in human beings is the Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims 54 (except the United Kingdom and Denmark). The Directive establishes minimum rules concerning the definition of criminal offences and sanctions in the area of trafficking in human beings. It also introduces common provisions, taking into account the gender perspective, to strengthen the prevention of this crime and the protection of the victims thereof.55
As far as the offences concerning trafficking in human beings are concerned, the EU Member States shall take the necessary measures to ensure that the following intentional acts are punishable: the recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability (i.e. a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved) or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.56
Exploitation shall include, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs. The consent of a victim of trafficking in human beings to the exploitation, whether intended or actual, shall be irrelevant. When the conduct involves a child (any person below 18 years of age), it shall be a punishable offence of trafficking in human beings even if none of the aforementioned means has been used.57
In addition, inciting, aiding and abetting or attempting to commit an aforementioned offence is punishable as well.
On the other hand, the Directive guarantees the non-prosecution of the victims and non-application of penalties to them. Competent national authorities are entitled not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal activities which they have been compelled to commit as a direct consequence of being subjected to trafficking in human beings.58
126.96.36.199 Sexual Exploitation of Children and Child Pornography
The prohibition on sex between adults and minors is neither absolute nor universal. A basic biological instinct mandates the protection of the young, which explains the common taboo against intercourse with very small children. Having said this, many societies both past and present are far more tolerant of sexual play with children than modern Western standards would permit.59
The Treaty on the functioning of the EU lists the list of areas of particularly serious crime with a cross-border dimension. As regards sexual exploitation of women and children, it is on that list (together with trafficking in human beings).60 As the European Commission pointed out, child sexual exploitation and sexual abuse has a considerable cross-border dimension, which is most evident in child pornography and child sex tourism, but also appears in the need to ensure that children in all Member States should be protected from offenders from all Member States, who can travel easily. This requires EU action.61
At the EU level, the leading legislative measure harmonising sexual exploitation of children and child pornography is the Directive 2011/92/EU on combating the sexual abuse and sexual exploitation of children and child pornography 62 (except the United Kingdom and Denmark). The Directive establishes minimum rules concerning the definition of criminal offences and sanctions in the area of sexual abuse and sexual exploitation of children, child pornography and solicitation of children for sexual purposes. It also introduces provisions to strengthen the prevention of those crimes and the protection of the victims thereof.63 It should be fully complementary with the Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims (see above) as some victims of human trafficking have also been child victims of sexual abuse or sexual exploitation.64
As far as offences concerning sexual exploitation of children and child pornography are concerned, they are divided into four categories, namely65:
offences concerning sexual abuse—for example: causing for sexual purposes a child (any person below the age of 18 years) who has not reached the age of sexual consent to witness sexual activities, even without having to participate; engaging in sexual activities with a child who has not reached the age of sexual consent; or engaging in sexual activities with a child, where abuse is made of a recognised position of trust, authority or influence over the child;
offences concerning sexual exploitation—for example: causing or recruiting a child to participate in pornographic performances; coercing or forcing a child to participate in pornographic performances, or threatening a child for such purposes; or knowingly attending pornographic performances involving the participation of a child;
offences concerning child pornography—for example: acquisition or possession of child pornography; knowingly obtaining access, by means of information and communication technology; or distribution, dissemination or transmission of child pornography; and
solicitation of children for sexual purposes i.e. the proposal, by means of information and communication technology, by an adult to meet a child who has not reached the age of sexual consent, for the purpose of engaging in sexual activities with a child, or/and production of child pornography, where that proposal was followed by material acts leading to such a meeting, or an attempt, by means of information and communication technology, to commit acquisition or possession of child pornography, or/and knowingly obtaining access (by means of information and communication technology) by an adult soliciting a child who has not reached the age of sexual consent to provide child pornography depicting that child.66
In addition, inciting or aiding and abetting to commit any of all these offences is punishable.
188.8.131.52 Illicit Trafficking in Narcotic Drugs and Psychotropic Substances
Drug trafficking deserves a certain primacy of place in any treatment of international co-operation in criminal matters. It was one of the very first areas in which States moved decisively to a new level of co-operation in the detection and prosecution of crimes. It has clear links to other forms of organised crime and there is considerable political will to undertake legislative action in response.67 However, as argue Weil and Rosen, history teaches that it is vain to hope that drugs will ever disappear and that any effort to eliminate them from society is doomed to failure.68
Again, the Treaty on the functioning of the EU lists the list of areas of particularly serious crime with a cross-border dimension. Illicit drug trafficking is on that list.69 The EU Member States are, however, unable to contain the spread of drugs without effective co-operation.70
At the EU level, the leading legislative measure harmonising drug trafficking is the Framework Decision 2004/757/JHA laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking.71 As is obvious, the purpose of the Framework Decision is to combat drug trafficking. It lays down minimum rules to be observed and minimum penalties to be applied by EU Member States.
The Framework Decision obliges the EU Member States to take measures against natural persons involved drug trafficking and lists punishable crimes linked to
trafficking in drugs, and
trafficking in drug precursors.
As far as trafficking in drugs is concerned, each EU Member State shall take the necessary measures to ensure that the following intentional conduct when committed without right is punishable72:
the production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation of drugs;
the cultivation of opium poppy, coca bush or cannabis plant; and
the possession or purchase of drugs with a view to conducting one of the activities listed above in the first section.
The term drugs shall mean any of the substances covered by the following UN Conventions: the Single Convention on Narcotic Drugs of 1961 as amended by the Protocol of 1972 and the Convention on Psychotropic Substances of 1971. It shall also include the substances subject to controls under the Decision 2005/387/JHA on the information exchange, risk-assessment and control of new psychoactive substances.73 Such substances are, for example, cocaine, heroin or opium.
As regards trafficking in drug precursors, each EU Member State shall take the necessary measures to ensure that intentional conduct when committed without right is punishable—the manufacture, transport or distribution of precursors, knowing that they are to be used in or for the illicit production or manufacture of drugs.74
The term precursors shall mean any substance scheduled in the EU legislation giving effect to the obligations deriving from the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988, namely the Regulation (EC) No 273/2004 on drug precursors75 and the Regulation (EC) No 111/2005 laying down rules for the monitoring of trade between the Community and third countries in drug precursors.76 Such substances are, for example, toluene, acetone, or hydrochloric acid.
In addition, incitement to commit, aiding and abetting or attempting one of the aforementioned offences shall be a criminal offence.77 However, all above described conducts shall not be included in the scope of the Framework Decision when it is committed by its perpetrators exclusively for their own personal consumption as defined by national law.78
Implementation of the Framework Decision 2004/757/JHA […] has not been completely satisfactory. While the majority of the EU Member States already had a number of the provisions in place, a number have also demonstrated that they have not always amended their existing legislation where the Framework Decision required it. There has been little progress in the alignment of national measures in the fight against drug trafficking.79 The European Commission announced a will to bring forward new EU legislation to ensure a more effective approximation of drug trafficking offences across the EU. Moreover, it announced a will to resent as legislative proposals a legislative package for directives on drugs, proposing the revision of the Framework Decision, as well as legislative proposals for directives on drug precursors.80 As regards the Framework Decision, it should be replaced with a ‘more effective’ directive.81
184.108.40.206 Laundering of the Proceeds of Crime
The main purpose behind the laundering of the proceeds of crime or money is to conceal its criminal origins because it is often the spending or general disposal of ill-gotten gains that leads to the detection of the original crime rather than being caught in the act. Therefore, money laundering has secondary aim—securing funds for future use and obtaining a financial return from ‘legitimate’ investments in order to evade detection.82 The term ‘money laundering’ arose in the United States of America in the 1920s. It was apparently used by American police officers with reference to the ownership and use of launderettes by mafia groups. These groups showed an active interest in acquiring these launderettes, many of which were already owned by criminal groups, as they gave them a means of giving a legitimate appearance to money derived from criminal activities. These illicit proceeds were declared to be profits gained through launderettes and were thus ‘laundered’. The term ‘money laundering’ was apparently first used with a legal meaning in an American judgment of 1982 concerning the confiscation of laundered Columbian drug proceeds.83
Similarly to afore analysed offences, the Treaty on the functioning of the EU considers money laundering as one of the areas of particularly serious crime with a cross-border dimension.84 At the EU level legislation has been adopted to protect the proper functioning of the financial system and of the internal market of the EU.
The leading legislative measure harmonising laundering of the proceeds of crime is the Directive 2005/60/EC on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing.85 The directive aims to prevent the use of the financial system for the purpose of money laundering and terrorist financing. It applies to financial and credit institutions, as well as to certain legal and natural persons working in the financial sector, including providers of goods.
Prior the Directive, money laundering had been defined in terms of drugs offences and imposed obligations solely on the financial sector. Later, the definition was amended and its scope was extended in terms of the crimes and the range of professions and activities. However, the definition of money laundering was left open the precise definition of serious offences. Later, a further definition of money laundering was proposed specifically to cover terrorist financing.86
The Directive obliges the EU Member States ensure that money laundering is prohibited.87 The following conduct, when committed intentionally, shall be regarded as money laundering88:
the conversion or transfer of property, knowing that such property is derived from criminal activity or from an act of participation in such activity, for the purpose of concealing or disguising the illicit origin of the property or of assisting any person who is involved in the commission of such activity to evade the legal consequences of his action;
the concealment or disguise of the true nature, source, location, disposition, movement, rights with respect to, or ownership of property, knowing that such property is derived from criminal activity or from an act of participation in such activity;
the acquisition, possession or use of property, knowing, at the time of receipt, that such property was derived from criminal activity or from an act of participation in such activity; and
participation in, association to commit, attempts to commit and aiding, abetting, facilitating and counselling the commission of any of the actions mentioned in the foregoing points.
In addition, money laundering shall be regarded as such even where the activities which generated the property to be laundered were carried out in the territory of another EU Member State or in that of a third country.89
However, the changing nature of money laundering and terrorist financing threats, facilitated by a constant evolution of technology and of the means at the disposal of criminals, requires a permanent adaptation of the legal framework to counter such threats. The European Commission has recently introduced a proposal for a new legislation.90
220.127.116.11 Counterfeiting Currency, Including of the Euro
The list of 32 offences covers counterfeiting currency, including of the euro. Considering the fact the work is focused on the EU level, analysed is only counterfeiting of the euro.
Nowadays, the euro is a single currency of the EU, not its common currency. In the opinion of Marsh, it is one of the Old Continent’s brightest and grandest success stories. The euro has become the second most important international currency after the United States dollar.91 It has replaced the national currencies of 17 of the 28 Member States of the EU. Moreover, it is the currency used in several non-EU Member States, for example, in Monaco, San Marino, and the Vatican City. However, the counterfeiting of the euro has been appeared. The euro is an attractive target for organised crime groups active in counterfeiting money, not only in Europe.
The international dimension of the threat with respect to euro counterfeiting called for and still calls for supranational co-ordination at the level of the EU. In order to protect the euro against counterfeiting, the legal framework for the protection of the euro has been developed in the EU.92
The Council of the EU wanted the euro to be appropriately protected in all Member States of the EU by effective criminal law measures before it was put into circulation on 1st January 2002. In order to guarantee tighter and harmonised criminal protection for the euro throughout the EU was adopted the Framework Decision 2000/383/JHA on increasing protection by criminal penalties and other sanctions against counterfeiting in connection with the introduction of the euro.93 The Framework Decision is designed to ensure that the euro is appropriately protected against counterfeiting by the criminal laws of all EU Member States.
As far as general offences are concerned, the EU Member States are obliged to take the necessary measures to ensure that the following conducts are punishable94:
any fraudulent making or altering of currency, whatever means are employed,
the fraudulent uttering of counterfeit currency,
the import, export, transport, receiving, or obtaining of counterfeit currency with a view to uttering the same and with knowledge that it is counterfeit, and
the fraudulent making, receiving, obtaining or possession of, firstly, instruments, articles, computer programs and any other means peculiarly adapted for the counterfeiting or altering of currency, or, secondly, holograms or other components of currency which serve to protect against counterfeiting.
The level of implementation of the Framework Decision is satisfactory. A total of 28 EU Member States adopted a law expressly transposing the constituent elements of the general concept of counterfeiting of currency as defined in the Framework Decision.95
The European Commissions published its work programme for 2012 with forthcoming initiatives.96 One of them should be focused on the reinforcing the protection of the euro against counterfeiting with criminal law sanctions. The initiative could build on and replace the Framework Decision 2000/383/JHA […]. The aim of the initiative should be increased protection of the euro by providing more efficient criminal legislation and procedures and a stronger monitoring of the EU rules in Member States.97
18.104.22.168 Fraud Affecting the Financial Interests of the EC/EU
The protection of financial interests of the EC/EU was promoted as a high priority for the European Community since the 1970s. The Court of Justice established in its judgment in the case of Commission of the European Communities v Hellenic Republic 98 that Member States had an obligation to protect the Communities’ financial interests as they did their own and to provide for penalties that were effective, proportionate and dissuasive.
The first instrument adopted in order to tackle fraud affecting the financial interests of the EC was the Convention on the protection of the European Communities’ financial interests 99 of 1995 (hereinafter ‘Convention on the protection of the financial interests’) and its Protocols.100 Under the Convention, fraud shall be punishable by effective, proportionate and dissuasive criminal penalties in all EU Member States, affecting both
As far as the expenditure is concerned, for the purposes of the Convention on the protection of the financial interests’, fraud affecting the European Communities’ financial interests shall consist of any intentional act or omission relating to101:
the use or presentation of false, incorrect or incomplete statements or documents, which has as its effect the misappropriation or wrongful retention of funds from the general budget of the EC or budgets managed by, or on behalf of, the EC;
non-disclosure of information in violation of a specific obligation, with the same effect; and
the misapplication of such funds for purposes other than those for which they were originally granted.
As regards the revenue, for the purposes of the Convention on the protection of the financial interests’, fraud affecting the European Communities’ financial interests shall consist of any intentional act or omission relating to102:
the use or presentation of false, incorrect or incomplete statements or documents, which has as its effect the illegal diminution of the resources of the general budget of the EC or budgets managed by, or on behalf of, the EC;
non-disclosure of information in violation of a specific obligation, with the same effect, and
misapplication of a legally obtained benefit, with the same effect.
In addition to that, each EU Member State shall take the necessary and appropriate measures to transpose mentioned conducts into their national criminal law in such a way that the conduct referred to therein constitutes criminal offences. Further, each Member State shall also take the necessary measures to ensure that the intentional preparation or supply of false, incorrect or incomplete statements or documents having the effect described above constitutes a criminal offence if it is not already punishable as a principal offence or as participation in, instigation of, or attempt to commit, fraud.103
22.214.171.124 Forgery of Means of Payment
In 2000 the volume of fraud in the EU was estimated at € 600 million for payment cards only. The rate of annual increase in fraud and counterfeiting was cause for concern. Fraud grew by approximately 50 % in the EU. In particular, one of the areas where fraud increased the most was remote payments, for example, made by phone, mail, or on the Internet. As a consequence, fraud undermines consumer confidence in payment systems. The risk of payment fraud is widely considered as one of the main barriers to the successful development of electronic commerce.104
As regards the EU primary law, the Treaty on the functioning of the EU lists counterfeiting of means of payment as one of the areas of particularly serious crime with a cross-border dimension.105
At the EU level, the leading legislative measure harmonising counterfeiting of means of payment is the Framework Decision 2001/413/JHA on combating fraud and counterfeiting of non-cash means of payment.106 Under the Framework Decision, fraud involving any form of non-cash means of payment shall be recognised as a criminal offence in all EU Member States and shall be punishable by effective, proportionate and dissuasive penalties. It should supplement and assist in the fight against fraud and counterfeiting involving non-cash means of payment together with other instruments, among others, the Decision 2008/976/JHA on the European Judicial Network107 and the Framework Decision 2008/841/JHA on the fight against organised crime.108
The Framework Decision deliberately avoids the use of strictly defined qualifications under existing criminal law because they do not cover the same elements everywhere. The approach taken instead is to describe the various types of behaviour which should be criminal offences throughout the EU in a way which does not limit the Framework Decision’s application to particular types of non-cash payment instruments.109 It introduced three types of offences, namely the offences related to payment instruments, the offences related to computers and the offences related to specifically adapted devices.
As far as the offences related to payment instruments are concerned, each EU Member State shall take the necessary measures to ensure that the following conduct is a criminal offence when committed intentionally, at least in respect of credit cards, eurocheque cards, other cards issued by financial institutions, travellers cheques, eurocheques, other cheques and bills of exchange110:
theft or other unlawful appropriation of a payment instrument;
counterfeiting or falsification of a payment instrument in order for it to be used fraudulently;
receiving, obtaining, transporting, sale or transfer to another person or possession of a stolen or otherwise unlawfully appropriated, or of a counterfeited or falsified payment instrument in order for it to be used fraudulently; and
fraudulent use of a stolen or otherwise unlawfully appropriated, or of a counterfeited or falsified payment instrument.
In addition, participating in and instigating of all mentioned conducts shall be are punishable.
For the purpose of the Framework Decision, the term payment instrument shall mean a corporeal instrument, other than legal tender (bank notes and coins), enabling, by its specific nature, alone or in conjunction with another (payment) instrument, the holder or user to transfer money or monetary value, as for example, credit cards, eurocheque cards, other cards issued by financial institutions, travellers’ cheques, eurocheques, other cheques and bills of exchange, which is protected against imitation or fraudulent use, for example, through design, coding or signature.111
126.96.36.199 Computer-Related Crime
It is trite, but nonetheless true, to say that we live in a digital age. The proliferation of digital technology, and the convergence of computing and communication devices, has transformed the way in which we socialise and do business. While overwhelmingly positive, there has also been a dark side to these developments. Proving the maxim that crime follows opportunity, virtually every advance has been accompanied by a corresponding niche to be exploited for criminal purposes.112 Worldwide, the total cost of cybercrime to society is significant. A recent report suggests that victims lose around US$388 billion each year worldwide as a result of cybercrime, making it more profitable than the global trade in marijuana, cocaine and heroin combined.113 The three-stage classification of computer-related has been known: crimes in which the computer or computer network is the target of the criminal activity—for example, hacking or malware; offences where the computer is a tool used to commit the crime—for example, child pornography or criminal copyright infringement; crimes in which the use of the computer is an incidental aspect of the commission of the crime, however, the computer is not significantly implicated in the commission of the offence—for example, addresses found in the computer of a murder suspect, or phone records of conversations between offender and victim before a homicide.114
Nowadays, as argues European Commission, no crime is as borderless as cybercrime, requiring law enforcement authorities to adopt a coordinated and collaborative approach across national borders, together with public and private stakeholders alike.115 As regards the EU primary law, the Treaty on the functioning of the EU lists computer crime as one of the areas of particularly serious crime with a cross-border dimension.116
As in the case of forgery of means of payment, at the EU level, the leading legislative measure harmonising cyber crime is the already aforementioned Framework Decision 2001/413/JHA on combating fraud and counterfeiting of non-cash means of payment.117 As shown, it introduced three types of offences, namely the offences related to payment instruments, the offences related to computers and the offences related to specifically adapted devices.
As far as the offences related to computers are concerned, each EU Member State shall take the necessary measures to ensure that, when committed intentionally, the following conducts shall be criminal offences—performing or causing a transfer of money or monetary value and thereby causing an unauthorised loss of property for another person, with the intention of procuring an unauthorised economic benefit for the person committing the offence or for a third party, by118:
without right introducing, altering, deleting or suppressing computer data, in particular identification data, or
without right interfering with the functioning of a computer programme or system.
As regards the offences related to specifically adapted devices, each EU Member State shall take the necessary measures to ensure that, when committed intentionally, following conducts shall be established as criminal offences—the fraudulent making, receiving, obtaining, sale or transfer to another person or possession of119:
instruments, articles, computer programmes and any other means peculiarly adapted for the commission of any of counterfeiting or falsification of a payment instrument in order for it to be used fraudulently; or
computer programmes the purpose of which is the commission of any of the offences related to computers.
In addition, participating in and instigating of all mentioned conducts shall be are punishable.
Furthermore, attacks against information systems have a considerable cross-border dimension, which is most obvious in large scale attacks, as the connecting elements of an attack are often situated in different locations and in different countries.120 Attacks of this kind could often be trans-national in nature, and would require international police and judicial co-operation in the EU. Criminal law in the area of attacks against information systems should be approximated in order to ensure the greatest possible police and judicial co-operation in the area of criminal offences related to attacks against information systems.
At the EU level, another leading legislative measure harmonising cyber crime is the Directive 2013/40/EU on attacks against information systems.121 The Directive establishes minimum rules concerning the definition of criminal offences and sanctions in the area of attacks against information systems. It also aims to facilitate the prevention of such offences and to improve co-operation between judicial and other competent authorities.
The Directive introduced common definitions of the offences involved in attacks against information systems at the level of the EU, namely:
illegal access to information systems,
illegal system interference,
illegal data interference, and
As far as the illegal access to information systems is concerned, the Member States of the EU shall take the necessary measures to ensure that, when committed intentionally, the access without right, to the whole or to any part of an information system, is punishable as a criminal offence where committed by infringing a security measure, at least for cases which are not minor.122