A4-0333/97

Resolution on the action plan to combat organized crime (7421/97 - C4-0199/97)

The European Parliament,

- having regard to the Action Plan to combat organized crime, adopted at the European Council in Amsterdam on 16 and 17 June 1997 (7421/97 - C4- 0199/97) ((OJ C 251, 15.8.1997, p. 1.)), drafted by the High Level Group on Organized Crime in accordance with the terms of reference given to it by the Dublin European Council of 13 and 14 December 1996 (hereinafter referred to as the Action Plan),

- having regard to the European Convention on Human Rights of 4 November 1950,

- having regard to Articles B, F, K.1(5) and (7) to (9), K.3(2) and K.6 of the Treaty on European Union,

- having regard to Presidency conclusions issued at the European Council meeting on 16 and 17 June 1997 in Amsterdam in the field of freedom, security and justice, and to the Treaty of Amsterdam signed on 2 October 1997 (hereinafter referred to as the Amsterdam Treaty), and in particular Section I thereof,

- having regard to its numerous resolutions on aspects of the fight against organized crime,

- having regard to the Commission's 'Agenda 2000' (COM(97)2000 - C4-0371/97 - C4-0372/97), presented to Parliament on 16 July 1997, and in particular to the statements made in the opinions on the applications of the individual applicant States concerning the field of justice and home affairs,

- having regard to the public hearing with representatives of the Italian anti- Mafia organization LIBERA held by its Committee on Civil Liberties and Internal Affairs on 9 October 1997,

- having regard to the motion for a resolution by Mr Robles Piquer on Community cooperation against mafia-style organizations active in tourist areas of the EU (B4-1330/96),

- having regard to the report of the Committee on Civil Liberties and Internal Affairs and the opinions of the Committee on Legal Affairs and Citizens' Rights and the Committee on Budgetary Control (A4-0333/97),

A. whereas organized crime within the European Union has increased in recent years and has now reached alarming levels, particularly in the trade in human beings and certain offences against children, the illicit traffic in drugs and arms, corruption, money laundering and large-scale fraud, partly against the Community budget,

B. concerned that individual Member States of the EU, and thus the EU itself, are in serious danger of being infiltrated or subverted in certain areas by organized crime,

C. whereas a further increase in organized crime may impair the opportunities for political, economic and social development for people in the EU, and may hinder their freedom of action and the operation of democratic institutions,

D. whereas cross-border organized crime in particular has been able to exploit both the opportunities afforded by free movement of goods, capital, services and persons in the internal market, new communications technologies and inadequate police, judicial and customs cooperation within the European Union,

E. whereas the existing system of police and court cooperation in the Member States largely dates back to a period when the present numerous opportunities for cross-border economic and communications technology activities, with their resulting dangers for internal security, did not yet exist,

F. whereas some obstacles to effective police and court cooperation are the result of the bureaucratic procedures between the Member States and of differences between national criminal justice systems (differing definitions of offences and differing requirements regarding the collection of evidence and its use in criminal proceedings) and it is therefore essential to work towards mutually compatible criminal procedures with a view eventually to harmonizing criminal procedure in respect of cross- border organized crime,

G. convinced that the best deterrent to committing crimes is the risk of being found out, and that measures to combat organized crime should therefore concentrate in particular on increasing the likelihood of detection,

H. convinced that the fight against organized crime must be carried on not only at national but at European and global level,

I. whereas, in combating organized crime, the EU must therefore undertake substantial reforms in the fields of police, judicial and customs cooperation in particular, in order adequately to respond to the overall changes which have occurred enabling criminals to operate since the creation of the internal market and the introduction of modern communications technologies, such as the Internet and electronic banking,

J. whereas moreover the measures to be taken to prevent organized crime and combat it effectively also, and primarily, serve to promote the security of citizens, especially children, and the protection of other important fundamental rights against violations,

K. concerned that individual measures introduced with the aim of combating organized crime are liable increasingly to invade the privacy of citizens, creating the preconditions for the establishment of a society in which citizens are subject to routine surveillance,

L. whereas such measures - where they contain provisions interfering with fundamental rights - must comply with the requirements of the European Convention on Human Rights and must thus be proportionate to the aim to be pursued and incorporate appropriate and effective machinery to prevent abuses (judicial and parliamentary control),

M. whereas, pursuant to Article K.1 of the EU Treaty as amended by the Amsterdam Treaty, preventing and combating organized crime is an essential condition for the gradual establishment of 'an area of freedom, security and justice',

N. convinced that the fight against organized crime is already one of the 'principal aspects of activities' of the Union within the meaning of Article K.6, second paragraph, second paragraph, of the Treaty on European Union, and that the Presidency should therefore have consulted Parliament on the Action Plan and have ensured that Parliament's views were duly taken into consideration,

O. concluding that the failure to consult Parliament on the Action Plan contravenes the provisions of Article K.6, second paragraph, of the Treaty on European Union and that the Council's interpretation of this Article is purely arbitrary or based on political expediency,

I. GENERAL OBSERVATIONS

1. Calls for the European Union to pay close attention to the fight against organized crime and take comprehensive and coordinated counter-measures which are necessary in the fight against organized crime, are based on the principles of democracy and the rule of law and on respect for human rights and fundamental freedoms and effectively pursue the dual objectives of prevention and punishment while taking account promptly of the changing forms which organized crime takes;

2. Considers therefore that the principles of the rule of law imply respect, as a matter of principle, for the following guarantees:

- protection of private life and data of a personal nature;

- respect, as a matter of principle, for the rights of the defence and procedural guarantees;

- adequate parliamentary and judicial control over the services responsible for combating organized crime and their activities;

- legal protection of citizens;

considers, moreover, that the creation of the European judicial area should proceed in parallel with the establishment of a European area for the rights of the defence and procedural guarantees (particularly with regard to extradition);

3. Calls, further, for all the conventions and other binding legal acts adopted to date by the United Nations, the Council of Europe and the European Union which provide for measures to combat organized crime to be ratified by the Member States as speedily as possible, where this has not yet happened, and at any rate no later than the end of 1998, and implemented fully and effectively by the competent authorities; calls for these conventions and other legal acts also to be ratified and fully and effectively implemented by the applicant countries before their accession, and for these countries to be involved straight away in the elaboration and application of further counter-measures;

4. Calls on the Commission soon to make practical proposals for implementing the cross-pillar recommendations and, even now, to make preparations for exercising the right of initiative vested in it by the Amsterdam Treaty with regard to police and judicial cooperation in criminal matters to improve common efforts to combat organized crime within the European Union; considers that, to this end, the Commission should in particular examine to what extent an internal reorganization (with the aim of tightening up responsibilities), in conjunction with adequate recruitment of expert staff, who in particular have practical experience in the field of police, judicial or customs authorities, is needed in order to be able to carry out this new task effectively;

5. Calls on the Commission to provide intensive assistance to the applicant states, particularly in their efforts to combat organized crime, even before their accession (for example by helping them to build up and complete efficient prosecution systems, by preparing training programmes for the specialist staff required for this purpose in the police, judicial bodies and customs services, and by means of technical and practical assistance in cooperation with the appropriate institutions of other States); expects at the same time, however, that the Commission will guarantee full involvement of the European Parliament;

II. THE ACTION PLAN (GENERAL)

6. Notes first of all that citizens of the European Union have a vital interest in the protection of their private and public safety, and that their rights of parliamentary representation at European level must therefore be guaranteed; therefore regrets that the Action Plan was drawn up in the Council without any consultation of Parliament pursuant to Article K.6, second paragraph, of the Treaty on European Union;

7. Calls therefore on the Council to consult Parliament on all legal acts implementing the recommendations of the Action Plan and duly to take its views into consideration;

8. Notes the Council's tendency to use third pillar instruments even when first pillar action is feasible; suggests where a choice is possible that the first pillar be used; in any case demands that democratic legitimacy be further strengthened in the third pillar by extending Parliament's possibilities of exercising democratic control;

9. Welcomes in principle the drafting of the Action Plan because it sets out, for the first time in the existence of the Third Pillar, the political guidelines underlying the Council's action in an important subject area and contains numerous comprehensive, coherent and concrete recommendations for the fight against organized crime together with realistic timetables for their implementation;

10. Regrets, however, that the Action Plan has many gaps, leaves certain important structural issues unresolved, devotes a relatively large amount of space to a number of less important points while other important problem areas are dealt with only briefly or ignored altogether;

11. Regrets, furthermore, that the Action Plan does not adopt any clear position on a number of vital questions but merely provides for research to be commissioned - even in fields where sufficient knowledge is already available to enable practical recommendations to be made;

12. Calls on the Council - in order to avoid any unnecessary delay - to commission this research immediately, with short deadlines for its completion, then to publish the findings and rapidly introduce legislation based on any recommendations they may contain, in order to avoid giving the impression that this approach is intended primarily to conceal the lack of consensus on substantive problems among the Member States and postpone for years the solution of the underlying problems with the aid of a study;

13. Regrets that the Action Plan makes no clear decision on the most important structural issue of all, namely whether organized crime should in future be combated by harmonizing the definition of major criminal offences and the provisions relating to criminal procedure, or by improving cooperation between the Member States while retaining differences in the national criminal law systems;

14. Observes that the indecision of the Member States and the incomprehensible upholding by many Member States of reservations on grounds of sovereignty hamper efforts to combat organized crime and that the Member States are hence themselves making it easier for organized criminals to operate;

15. Proposes therefore that in combating organized crime the EU should

- give priority to improving cooperation between the Member States, particularly since much more could be done to exploit the opportunities for practical cooperation between prosecuting authorities and to step up efforts to make the criminal justice systems within the EU mutually compatible without structural alterations - as witness the close and in practice very effective Nordic cooperation in this field (identical computer systems for the police, courts, customs and coastguards; close cooperation between the various analysis units; close-knit network of liaison officials);

- aim, however, for harmonization in those areas in which the opportunities for cooperation between the Member States have already been fully exploited and have still produced no satisfactory results; in these areas a gradual approximation of the varying criminal justice systems in the Member States should take place in the short and medium term by the setting of minimum standards, in view of the fact that harmonization is an extremely long drawn-out procedure;

16. Further proposes close practical cooperation particularly with neighbouring non-EU countries which should carry out joint operations under the leadership of senior figures, modelled perhaps on the lines of Baltic cooperation;

III. THE ACTION PLAN (DETAIL)

The failure to define 'organized crime'

17. Regards the absence of a definition of 'organized crime' as a serious omission, since it means that the types of crime which the Action Plan aims to combat are not precisely described and distinguished from other forms of crime;

18. Calls on the Council to establish a Community-wide definition of the concept of organized crime, before the first legislative measures are taken to implement the Action Plan, so as to prevent the persistence of totally different concepts in the Member States and thus of divergent views on whether organized crime has been committed; in any such Community-wide definition the following factors should form an essential part: planned, long-term activity involving the sharing of work by a considerable number of persons, with the aim of committing criminal offences causing considerable financial damage, unambiguously motivated by a desire for profit and having the objective of transferring illegal proceeds to the legal economy;

Recommendation 1

19. Supports in principle the designation in each country of a body at national level responsible for the coordination of measures to combat organized crime, provided that this takes the form not of a new unwieldy level of bureaucracy but of a flexible service agency providing rapid, unbureaucratic and informal aid to national prosecution services;

Recommendations 3 and 27

20. Supports the conclusion of pre-accession agreements with the applicant States on cooperation in combating organized crime; points out that the principal international conventions on combating organized crime, including all measures against money laundering (such as the recommendations of the Financial Action Task Force on Money Laundering) must be ratified and implemented effectively and completely before these States accede;

21. Calls for the persons from those States who are responsible for combating organized crime to be involved at the earliest possible date in the relevant exchange, training and further training programmes such as STOP, OISIN, GROTIUS and SHERLOCK; advocates - in connection with the consolidation of democratic institutions and public administration in the applicant States which the Phare programme seeks to support - that substantial funding be made available to combat organized crime in those States;

Recommendation 4

22. Suggests that, in addition to the transatlantic partners, Russia and Ukraine, the States with which closer cooperation in combating organized crime is sought should also include Belarus; the same applies to those States in which large quantities of drugs are produced for the European market or which are regarded as transit countries for drugs;

Recommendation 5

23. Regrets that only now is a cross-pillar study on high-technology crime to be carried out, and calls for the study to encompass:

- opportunities for money laundering using the Internet;

- the use of filter techniques against criminal and undesirable material on the Internet;

- opportunities for fraud in connection with electronic business transactions;

- problems experienced by the security authorities on account of the encryption of electronic business transactions;

- the danger of systematic economic espionage

- the need for higher security standards for credit cards, computer networks, vehicle immobilizers, etc. as technical means of preventing organized crime;

- the need for international agreements to back up the Union's own measures;

Recommendations 6, 15, 17 and 21

24. Welcomes the rapid drafting of legislative proposals to implement these recommendations by the Council and consultation of Parliament on the basis of Article K.6 of the Treaty on European Union on these drafts (joint actions on the legal definition of corruption in the private sector, on a mechanism for evaluating the implementation of international undertakings, on the legal definition of participation in a criminal organization and on the creation of a European judicial network);

Recommendation 7

25. Considers - with reference to Article 6(2) of the European Convention on Human Rights, pursuant to which every person must be presumed innocent until proved guilty according to law (presumption of innocence) - that there is no need to carry out a study if its purpose is purely to ascertain whether people should also be excluded from public tender procedures who are suspected of involvement in organized crime but have not yet been convicted thereof; observes that until a person has been found guilty in accordance with the law, any penalties or measures resembling penalties (such as exclusion from public tender procedures, refusal of subsidies, refusal to grant State licences) must be purely of a temporary character and that the persons concerned must have a claim to compensation if they are imposed without justification; takes the view however that persons having committed offences linked to organized crime and who have been definitively convicted must not take part in tendering procedures initiated by the Member States or the European Union for a specific period determined by the court as an incidental sentence;

Recommendation 9

26. Calls for the Structural Funds to be used, inter alia, to reinforce judicial bodies (with the aim of contributing to the normal functioning of basic justice at a level closer to the citizen) and law enforcement agencies; urges that the recommended measures not be confined to large cities but be applied also in less urbanized areas; notes in particular the great contribution the civil population can make to combating organized crime (strengthening people's sense of civic responsibility, building greater confidence between the police and the resident population, increasing citizens' willingness to work with the police) and points out what influence a comprehensive and consistent social, youth and education policy or the restructuring and revitalization of urban areas or bodies such as social workers and neighbourhood groups might have upon the prevention of organized crime;

Recommendation 10

27. Considers close cooperation between the Member States and the Commission's anti-fraud unit (UCLAF) - particularly with a view to preventing organized crime from becoming more heavily involved in fraud against the Community (particularly the smuggling of cigarettes, alcoholic drinks and foodstuffs and the subsequent channelling of the proceeds of such fraud into legal financial circulation) - to be essential in order to improve the efficiency of investigations on the basis of shared information and specialized knowledge; believes that efforts should be made to establish a Community regulation making fraud against the financial interests of the Community a criminal offence;

28. Calls in particular for the application of measures with preventive effect, such as precautions to prevent the abuse of administrative provisions and refinements to control procedures;

29. Notes, moreover, that inadequate parliamentary control of the actions of authorities, as exemplified by the persistently insufficient powers of control of Parliament at European Union level, promotes corruption and abuses;

Recommendation 11

30. Warns against joint actions of long or unlimited duration, enacted before the entry into force of the Treaty of Amsterdam and running counter to the new prerogatives which the European Parliament will obtain as a result of the application of that treaty;

Recommendation 12

31. Considers that the adoption of codes of conduct is a necessary but insufficient measure to protect people in threatened professions such as notaries, lawyers, accountants and auditors, who are duty-bound to maintain confidentiality towards their clients, from the influence of organized crime, given that links to organized crime are as a rule not obvious, or are not disclosed, at the first contact with the client and that professional confidentiality subsequently often obstructs and prevents these professional people from taking action;

32. Urges that these codes of conduct should provide inter alia for the immediate termination of contacts with clients whom there is good reason to suppose are linked with organized crime; further urges that measures should be considered to provide those in the endangered professions with the legal means - notwithstanding their professional confidentiality - to approach the prosecuting authorities if they have good reason to suppose that clients of theirs are linked to organized crime, so that they can take action to avoid being involved in or exploited by organized crime themselves;

33. Calls on the Council to enhance its cooperation with the professional organizations of vulnerable professions; asks the Commission to examine the possibility of putting forward legislative proposals to that end;

Recommendation 16

34. Observes that one of the main problems complained of by judges specifically involved in international criminal investigations is the length of time taken to execute letters rogatory;

35. Calls, therefore, for the convention on mutual assistance in criminal matters currently being drafted by the Council to include provisions laying down precise time limits for the execution of letters rogatory, and deplores the absence of any such provisions in the draft already forwarded to Parliament for consultation;

36. Considers that judicial cooperation in combating organized crime should be carried out in parallel with gradual integration of the rights of the defence, protection of suspects and procedural guarantees in Europe, and calls for further development of European prosecution strategies on the basis of the 'corpus juris' proposals;

Recommendation 17

37. Considers that a gradual approximation of the Member States' laws by setting minimum standards appears sensible, particularly in those areas where

- differing legal requirements concerning interference with fundamental rights hinder efficient cross-border investigations,

- differing standards concerning evidence lead to problems in using and assessing evidence obtained in another Member State,

- differing definitions of offences and widely diverging potential sentences lead to very widely differing risks for persons committing cross-border offences,

- there is a legal obstacle to cooperation between the Member States owing to a lack of comparable criminal justice provisions and the requirement that the offence should be punishable in both countries;

38. Calls on the Council to include, in its recommended study on priority areas for the approximation or harmonization of the laws relevant to the fight against organized crime, longer-term proposals such as those of 'Corpus iuris', drafted by a group of experts on the Commission's instructions and at the request of Parliament and published in 1997, which deal with the creation of a future common European criminal law and justice area;

Recommendation 19

39. Stresses, in the light of recommendations by legal practitioners such as the Geneva Appeal Judges, that encouragement should be given not to centralism but to direct links between the prosecuting authorities of the Member States, as, incidentally, the Schengen Agreement shows; to this end it would be useful to develop in the first instance measures dealing with the main problems posed by direct links (such as overcoming language barriers by providing language training, by drafting and distributing a polyglot dictionary of differing legal concepts, compiling a list of addresses relevant to the prosecution of offences in the Member States, etc) such measures should be regarded only as a step towards the establishment of a common area of law;

40. Regards the creation of central national contact points as useful only if they are given the task of simplifying, and thus rendering more efficient, direct contacts between the relevant prosecution authorities of the Member States;

Recommendation 20

41. Welcomes the setting up of multidisciplinary integrated teams at national level in so far as they are better able to tackle the complex phenomenon of cross-border organized crime and can thus draw up measures to combat it more efficiently, on account of their different but related ways of assessing, approaching and solving problems; consideration should however be given to whether and to what extent these tasks might not eventually be assumed by Europol;

Recommendation 22

42. Calls on the Council, in the light of its duty to consult Parliament created by the Amsterdam Treaty in Article K.11(1) of the Treaty on European Union, to appoint without delay two European Parliament representatives as observers in the multidisciplinary Working Party on Organized Crime, with a view to improving mutual information and interinstitutional cooperation;

Recommendation 23

43. Calls, in the light of the extended mandate of Europol since the signature of the Europol Convention, and having regard to the broadening of Europol's tasks by the Amsterdam Treaty, for the amendment of Article 35(2) of the Europol Convention to the effect that the budget of Europol is to be funded by the contributions of the Member States and other occasional revenue, with a view to incorporating the Europol budget in the budget of the EC;

Recommendation 24

44. Welcomes the drafting of appropriate legal acts to permit or step up contacts between Europol and the Commission;

Recommendation 25

45. Welcomes the further development of Europol's tasks, because police forces working in a coordinated way at Europe-wide level are a crucial to the efficient combating of criminal organizations which are operating Europe- wide; this improvement should also include reciprocal encouragement of Europol and the Member States to become active in particular areas of organized crime;

46. Considers the absence of a legal and parliamentary system of control for a police force with operational authority to be inconsistent with the principles of democracy and the rule of law; calls therefore, in view of the expansion of the tasks of Europol by the Amsterdam Treaty to cover operational tasks (if only in a supporting role), for a central judicial control system for the individual activities of Europol to be created when the Europol Convention is revised, as well as an obligation for Europol to report regularly on its activities to the European Parliament and the national parliaments;

Recommendations 26 and 28

47. Accepts the proposed measures with the following restrictions and additions:

- the catalogue of offences constituting money laundering should be standardized throughout the EU and should include serious forms of property crime;

- the extension of penal liability for money laundering to include negligent behaviour is rejected;

- the means of tracing, confiscating and seizing illegal assets must be improved and made more sophisticated, while ensuring that everyday business such as legitimate cross-border transactions are not made unduly difficult or impossible; the inquiry should, however, also address possible ways of improving and simplifying the practical procedures involved in cross-border investigation;

- the possibility of confiscating the illegally acquired assets of offenders who have died or absconded is welcomed, with the proviso that priority must be given to meeting the claims of the offenders' victims from the confiscated assets;

- measures to help the victims of crime should be given special priority;

- the possibility of reducing the amount of evidence required in order to confiscate the illegally acquired assets of criminal organizations can be examined (without, however, reversing the burden of proof), taking into account the requirements of constitutional democracy and the experiences of Member States which have already introduced such a reduction in the evidence required;

- a further inquiry should clarify whether and to what extent government actions such as particularly high taxation of certain products (alcohol and cigarettes, for example), raising as they do the potential profit margins, constitute a provocation to criminal activity;

- consideration should be given to the idea of sharing confiscated assets (after all compensation claims have been satisfied) among the Member States involved in proportion to the role they played in the investigation, since it is often the case in cross-border investigations that individual Member States bear the greater part of the burden of investigation, while others reap the financial benefits of confiscation; however, such a distribution was proposed in the 1988 Convention against trafficking in drugs and psychotropic substances, but has scarcely been put into practice since;

- as an alternative to sharing confiscated assets, which would be extremely difficult to implement fairly, the possibility should be considered of setting up a European fund to help victims and prevent crime;

IV. THE GAPS IN THE ACTION PLAN

Social aspects

48. Regrets the fact that the Action Plan, when it speaks of preventive measures, neglects almost entirely the valuable contributions to combating organized crime made by civil society;

49. Calls on the Council, the Commission and the Member States to support and promote measures for education about the law;

50. Calls on the Council, the Commission, the Member States and the regions to carry out intensive information campaigns concerning the effects of organized crime and to take effective measures against the circumstances which tend to encourage involvement in organized crime; calls for these preventive measures to counteract in particular rising unemployment, social security systems with ever-greater shortcomings, increasing poverty, looser links with traditional social systems (leisure clubs, schools, churches, the family) and failures of urban planning (slums and residential ghettos); these measures should, however, also take account of positive experiences with community policing (particularly in the area of youth work) and recent discoveries about crime prevention, such as the fact that crime is encouraged when damage to public places is not repaired (the 'broken window theory');

Surveillance of modern communications systems

51. Considers that there is a need for overall strategies to prevent the development of organized crime within modern technologies, especially in the field of telecommunications and electronic communications media;

Specific investigative methods

52. Calls for joint action using special methods of investigation - subject to the requirements which arise from the further development of the European prosecution strategies and of Europol - to focus in particular on the following areas:

- the cross-border use of plain-clothes investigators;

- the Europeanization of witness protection programmes;

- deployment of joint mixed-nationality investigating teams;

53. Takes the view, therefore, that the problems connected with these special investigative methods should not be passed over in silence, but instead should be particularly thoroughly debated - above all at parliamentary level; in so doing, any attempt using these methods to give the criminal investigation agencies instruments equal to those used by organized crime should always go hand in hand with a careful weighing of the level of violation of basic civil rights and possible effects on innocent parties against the chances of success and the advantages vis-à-vis traditional investigative methods;

54. Takes the view, also, that should the abovementioned careful consideration of such investigative methods suggest that their use is necessary and justified, they should only be used under extremely strict framework conditions and must be subject to the most rigorous legal and parliamentary controls, with, in particular, effective measures to prevent their misuse;

55. Calls, to this end, for the new convention on mutual assistance in criminal matters which is currently being drafted by the Council to regulate such special investigative methods for the competent parties;

56. Calls on the Council to draw up common measures for each of the special investigative methods which define precisely the circumstances under which they may be used and lay down democratic, constitutional limits, thus pointing the way towards harmonization of the use of these investigative methods in the Member States with the aim of setting up similar standards of proof - and thus enabling evidence obtained by these means to be used on a reciprocal basis in criminal proceedings in the Member States;

57. Instructs its President to forward this resolution to the Council, the Commission and the Governments and Parliaments of the Member States and the applicant States.