Module 5 - Police cooperation - Version 3.0
The European Judicial
training network /
With the support of the European Union
Project description
This module is part of a standard training programme in judicial cooperation in criminal matters within the European Union (EU-Copen Training Programme).
The ‘programme’ as a whole is an educational training tool designed to facilitate the training of judicial authorities in the field of judicial cooperation in criminal matters within the European Union. The tool is primarily aimed at any national authority responsible for judicial training, for the purpose of developing specific training courses on the subject, as well as to any stakeholder involved in judicial cooperation as part of their day-to-day professional practice. It may also be used by anyone interested in this field.
The methodological approach of the ‘standard programme’ aims to provide authoritative information while also focusing on the practical aspects of the mechanisms of judicial cooperation.
This tool was originally developed based on two projects run in 2005-2006, and subsequently in 2009, by the Institute for European Studies (Free University of Brussels) and ECLAN (European Criminal Law Academic Network) with funding from the European Commission (under the AGIS programme and subsequently the ‘Criminal Justice’ programme) of the Ministry of Justice of the Grand Duchy of Luxembourg and the International University Institute of Luxembourg.
In 2012, the European Judicial Training Network, which has been involved in the Copen Training programme since it began, took over the project’s management and coordination. Version 3 (3.0) of the Copen Training tool is therefore the property of the European Judicial Training Network. Any comments regarding its content and any requests for information about Copen Training should be sent to , quoting Copen Training.
The main authors of version 3.0 are: Serge de Biolley, Gisèle Vernimmen and Anne Weyembergh. Veronica Santamaría and Laura Surano contributed to the previous versions.
How to use this document:
The ‘standard training programme in judicial cooperation in criminal matters’ training tool and all parts thereof are the property of the European Judicial Training Network. Its use is subject to the following conditions:
1. Its content and layout cannot be altered in any way, except:
- where space is explicitly provided for the insertion of data relating to training organised on the basis of this standard programme (organiser’s logo, date, place etc.)
- where space is explicitly provided for the insertion of data relating to the national situation of the Member State concerned
2. If the user feels that corrections or additions need to be made to the content of the tool or parts thereof, provided each of the following criteria is met:
- the additions or amendments must be accompanied by a foreword indicating the origin of these amendments or additions
- these additions and amendments must be notified to the project’s development team , quoting Copen Training.
3. No section of the tool or its parts may be copied or separated from the tool as a whole without the express permission of the Institute for European Studies and of its authors.
/ What’s new in this version?
This is the 3rd version of this Module. It takes into account:
-The entry into force of the Lisbon Treaty
-Developments of the SIS II
-The implementation of the ‘Prüm Decision’ (Decision 2008/615/JHA)
-The implementation of the Swedish Framework Decision (Framework Decision 2006/690/JHA)
-The new ‘EU policy cycle for organised and serious crime’
-Developments of Europol
/ Aims of this module
Most European police cooperation focuses on the prevention, prosecution and investigation of crime through the exchange of information and operational cooperation. Judicial officersengaged in judicial cooperation should therefore have at least a general awareness of the different facets of police cooperation.
This may be the starting point for launching an investigation or may lead to discovering links between investigations conducted in different Member States. This can occur where, for example, criminal analysis by Europol uncovers information that has an impact on the investigations and proceedings undertaken at national level.
Police cooperation may also be an effective resource for judicial cooperation. Police cooperation is more flexible, faster, and less formal than judicial cooperation.
Finally, police cooperation offers tools and channels that are indispensable to judicial officers: for example the SIS, which will, inter alia, make it possible to create an alert for a person against whom a European arrest warrant has been issued.
This Module does not aim to provide exhaustive training on police cooperation, but rather to identify the main aspects judicial officers need to know, particularly since they may encounter them during the judicial stage.
Relevant legislation
-Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985 Compendium B.2.1.
-Framework Decision 2006/960/JHA of 18 December 2006 Compendium B.7.6.
-Decision 2008/615/JHA of 23 June 2008 Compendium B.7.7.
-Decision 2009/371/JHA of 6 April 2009 Compendium B.7.8.
-Decision 2003/170/JHA of 27 February 2003 Compendium B.7.5.
/ Contents1.Introduction
2.The exchange of information
2.1.The legal procedure for the exchange of information
2.1.1Material scope
2.1.2Information concerned
2.1.3Exclusion from use as evidence
2.1.4Involvement of the judicial authority
2.1.5Grounds for refusal
2.1.6Implementing the new legal framework
2.2.Direct access to national databases (‘Prüm’ system)
2.2.1General comments
2.2.2Direct access to vehicle registration files
2.2.3Direct access to fingerprints records
2.2.4Direct access to DNA profile records
3.Stakeholders and channels of police cooperation
3.1.EUROPOL
3.1.1Fact sheet
3.1.2Introduction
3.1.3Objective
3.1.4Competences
3.1.5Structure
3.1.6Europol’s reach
3.1.7Cooperation beyond the EU
3.1.8Conclusion
3.2.The Schengen Information System (SIS)
3.2.1Introduction
3.2.2Territorial scope
3.2.3Structure
3.2.4How it works
3.3.Interpol
3.3.1Structure and functioning
3.3.2Tasks and objectives
3.3.3Operational action
3.4.Liaison officers
3.5.Cooperation between financial intelligence units (FIUs)
3.6.Specific cooperation in border areas
3.7.Towards an effective and coherent EU strategy for combating serious and organised crime
Module 5 - Police cooperation - Version 3.01.Introduction
Before 1990, there was no common foundation for the legal and institutional framework governing cooperation between European police forces. This contrasted with the framework for judicial cooperation, which was determined as early as the 1950s through key conventions (the 1957 Extradition Convention and the 1959 Mutual Legal Assistance Convention). The status of police cooperation, which has for a long time taken place informally, is less clear.
Some of this cooperation takes place through the channel of Interpol, the outcome of a European initiative in the early the twentieth century that has since become a global organisation. Other work has taken place bilaterally or within defined regional frameworks (such as Benelux cooperation).
Work also took place at European level in the 1980s within the framework of Trevi. Trevi was not a channel for police cooperation, but rather a forum for discussing developments in police cooperation. Trevi paved the way for future developments, but did not directly give rise to any specific instrument.
By creating a legal framework for ‘European’ police cooperation, the 1985 Schengen Agreement and its subsequent implementation via the Schengen Convention of 19 June 1990 marked an initial turning point. The Schengen Convention contained such advances as establishing a general legal basis for the exchange of information, setting up the Schengen Information System (SIS) and the authorisation, under certain conditions, of cross-border surveillance and hot pursuit.
Although the scope of this legal framework was initially limited to 5 member countries, Schengen cooperation, at least with regards to police and judicial cooperation, gradually merged with the EU and today even includes non-EU countries (Switzerland, Norway and Iceland).
Police cooperation in the EU received a second important boost from the Europol Convention of 26 July 1995. The aim of Europol was not only to encourage bilateral cooperation between the States concerned, but also to enable a concerted response from all the Member States to the threat posed by organised crime, in particular by sharing, facilitating the circulation of, and analysing the information gathered.
In the 10 years following signature of the Europol Convention, EU work in the area of police cooperation focused on developing Europol (including the gradual enlargement of its mandate), developing the SIS and, police training.
Work on the Convention on the Future of Europe, the text of the Constitutional Treaty and, lastly, The Hague Programme of November 2004, all in the context of combating terrorism, gave fresh impetus to police cooperation. This fresh impetus mainly took the form of profound changes to both the exchange of information and to the development of an internal security strategy.
The entry into force of the Lisbon Treaty on 1 December 2009 did not significantly change the EU’s competences in the area of police cooperation, but did introduce drastic changes to the EU’s institutions of police cooperation. Please refer to Module 1 for more information on this subject. However, remember that the Lisbon Treaty entails that a large number of the EU’s instruments for police cooperation will now be adopted by the Council and by the Parliament under the co-decision procedure, that the Commission may require Member States to implement EU instruments (including, to some extent, instruments adopted before 2009) and that the ‘normal’ competences of the Court of Justice apply to all these instruments.
These drastic changes to the institutions have yet to have much impact, given the low number of new proposals. As at late 2012, the EU had not yet adopted any major instrument relating to police cooperation. The focus is on implementing existing law, particularly the ‘Prüm’ decision (Decision 2008/615/JHA, see below).
Lastly, it should be noted that joint investigation teams (see Module 4) are a tool for police cooperation and judicial cooperation.
2.The exchange of information
Collecting, processing, managing, analysing and transmitting information are key elements of police work and most European police cooperation centres on these functions.
The first major undertakings focused on ways of sending information to contacts securely, and on information as an operational means of monitoring. Interpol and the Schengen system, for instance, offer secure systems for transmitting information from one State to another as well as ‘check’ or ‘alert’ systems. Liaison officers also play a role in the exchange of information. These initial undertakings were primarily at bilateral level.
The establishment of Europol, for multilateral cooperation, came later. Its focus is on sharing information with a view to analysing it at European level.
Police information became critically important in the European response to terrorism, particularly after the Madrid bombings of 11 March 2004. In The Hague Programme of November 2004, the Council adopted the ‘principle of availability’. The scope of this principle has never been clearly defined. However, its objective can be explained as follows: in the context of a criminal investigation, an investigator from State A who requires information located in State B should to be able to access this information under the same conditions (legal rules) and by the same means (if necessary, direct access to the database) as if they were an agent from State B.
Although the flow of information may sometimes be insufficient, this is not solely the result of legal or technical difficulties; the source of the problems is often the fact of dealing with multiple police forces and channels (and therefore multiple databases), a lack of reciprocal knowledge, as well as a lack of reflexive coordination. The attitude towards exchanging information may also vary widely from one State to the next.
2.1.The legal procedure for the exchange of information
The exchange of information between the police services of different States has long taken place without a multilateral legal basis.
Article 39 of the Schengen Convention (Compendium B.2.1.) offersgeneral rule, for the first time. This is, however, limited to allowing information to be exchanged without really imposing requirements. Article 46 of the Schengen Convention also establishes a legal basis for the so-called ‘spontaneous’ transmission of information (that is, at the initiative of the State transmitting the information without a request having to made by the receiving State).
Framework Decision 2006/960/JHA of 18 December 2006[1] (Compendium B.7.6) on simplifying the exchange of information replaces Articles 39 and 46 of the Schengen Convention and establishes more detailed and binding procedure, as regards both the obligation to transmit information and the time-limits. It constitutes an initial implementation of the ‘principle of availability’.
Decision 2008/615/JHA (Compendium B.7.7.), which integrates the Prüm Treaty into EU law, goes further than Article 39 and Framework Decision 2006/960/JHA, since it provides for direct access by a national police authority to a national database of another Member State. It is, in a sense, a perfect vision of the principle of availability. However, it only covers fingerprints, DNA profiles and vehicle registration data, and various restrictions are placed on this direct access (see below).
2.1.1Material scope
Article 39 does not place any limitations on material scope. The Framework Decision on simplifying the exchange of information is also broad in scope, but contains a ground for refusal making it possible not to transmit information when the offence justifying the request is punishable by a prison term of one year or less.
2.1.2Information concerned
Whereas Article 39 did not provide any clarification regarding the information concerned, the Framework Decision on simplifying the exchange of information is more specific.
The determining criterion is the availability of the information. Information held by a law enforcement authority must be exchanged, as well as information that is held by another public authority or by a private individual and to which the law enforcement authority has access without having to take a coercive measure.
The most straightforward example is that of information found in a database held by the requested police or a database to which the latter has direct access. The Framework Decision also applies to information to which the police only have access following authorisation from a judicial authority.
The mention of coercive measures plays a decisive role in this procedure, since it makes it possible (it is for each Member State to make this choice) not to transmit information previously obtained by means of a coercive measure and always excludes information that has yet to be obtained by means of such a measure. ‘Coercive measure’ is not, however, given a conceptual definition, so how this is implemented may vary significantly from one State to another.
Article 39 and the Framework Decision on simplifying the exchange of information are, in effect, broadly applicable regarding the content of the requested information. This may therefore equally involve non-sensitive information, such as a number plate, or more sensitive personal data, such as whether a person is linked to criminal cases in the requested State.
2.1.3Exclusion from use as evidence
Both Article 39 of the Schengen Convention and the Framework Decision stipulate that information obtained by requesting authorities may not be used as evidence. The exchange of information between police services takes place at a preliminary stage of the criminal investigation, where it is primarily a matter of ‘closing off avenues’ and guiding the inquiries, for example by ruling out certain suspects. In police jargon, this is information transmitted ‘for police use only’.
That does not mean that the information cannot be brought to the attention of the judge leading the investigation. However, the information exchanged is not, at this stage, intended to be referred to the trial judge.
If, subsequent to transmission via police channels, it is found that the information is so important that it must be used as evidence, this information must be ‘validated’ via a judicial procedure (if appropriate, via a European evidence warrant where this is applicable – see Modules 6 and 7).
However, it is not necessary to use the channel of mutual legal assistance if the State transmitting the information has previously authorised its use as evidence[2]. Member States therefore have the option of authorising, without further explanation, the ‘judicial’ use of information transmitted by means of ‘police’ cooperation. It may be anticipated that such authorisation will be given for some categories of non-sensitive information in order to ease the burden on mutual legal assistance.
2.1.4Involvement of the judicial authority
The scope of Article 39 is reduced by the fact that the exchange of information only has to take place if ‘national law does not stipulate that the request has to be made [...] via the judicial authorities’. National legislation banning all transmission of police information abroad because such information is linked to a criminal case and therefore under judicial supervision would consequently be legally compatible with Article 39. Aside from this extreme example, Article 39 allows for a wide range of possible solutions, depending on national laws.
As stated above, it was this restriction that the Framework Decision on simplifying the exchange of information primarily sought to relax.
- Firstly, the fact that judicial authorisation is required can no longer, in itself, be an obstacle to the exchange of information through police cooperation. It is here that the Framework Decision most clearly overlaps with judicial cooperation. This does not mean, however, that judicial authorisation should be abandoned. Member States may retain judicial supervision of the exchange of information and apply ‘the same rules […] as in a purely internal case’ (Article 3(4)). But this supervision no longer requires following the mutual legal assistance procedure. It is therefore the police authorities that take the lead in the exchange of information. This contrasts with the procedure under Article 39, whereby judicial supervision in the requested State requires that requesting police authorities refer the matter to judicial authorities in their own State to initiate a mutual legal assistance procedure.
- Secondly, the Framework Decision limits Member States’ margin of manoeuvre as regards cases where such prior judicial authorisation may be required. This cannot be the case unless the requested police authority would have had to obtain the same authorisation from its own judicial authority in a similar, purely domestic case. In other words, prior judicial supervision cannot be retained if the requested police authority has independent access to the requested information. A good example would be there the information is found in a police database or in a register to which the police have direct access.
2.1.5Grounds for refusal
If a request falls within this scope, the information must, in principle, be transmitted. This is not, however, an absolute rule and there are significant but exhaustive exceptions to the obligation. The first exception, the result of a compromise, is that national law may exclude from the scope information that is already in the possession of the police services but which was obtained by means of coercive measures. This choice is therefore left to Member States. The conceptual definition of coercive measure is also left to national law, which reduces the scope for harmonisation. The Framework Decision also contains conventional grounds for refusal relating to national interests and to protecting the ongoing investigation or the safety of an individual. It is possible to refuse to execute requests that appear to be manifestly disproportionate, which entail that supervision is retained in the requested State. Lastly, requests relating to minor offences may be refused.