MARKETING SEMINARMARKETING SEMINAR

A Practical case: the role of EurojustA Practical case: the role of Eurojust

in reaching a solution in reaching a solution

ROME – 27 – 28 October 2011ROME – 27 – 28 October 2011

JOÃO MANUEL DA SILVA MIGUEL National Member for PortugalNational Member for Portugal

An example of Eurojust An example of Eurojust experience in dealing with experience in dealing with

Trafficking in Human Beings Trafficking in Human Beings and conflicts of jurisdictionand conflicts of jurisdiction

An illustration of coordination An illustration of coordination between national authoritiesbetween national authorities

(using the powers granted by article 6 of EJ (using the powers granted by article 6 of EJ Decision)Decision)

• Portuguese authorities noticed that several Portuguese authorities noticed that several criminal complaints were made in different criminal complaints were made in different regions of Portugal. regions of Portugal.

• All these complains regarded generically the All these complains regarded generically the same offenders and the same way of acting. same offenders and the same way of acting.

• Following a Police analysis, a criminal Following a Police analysis, a criminal organization acting in the north of Portugal organization acting in the north of Portugal and in Spain (La Rioja and the Basque and in Spain (La Rioja and the Basque Country) was identified.Country) was identified.

A criminal investigation involving A criminal investigation involving Portugal and SpainPortugal and Spain

Facts 1

• A single criminal investigation was undertaken in A single criminal investigation was undertaken in Portugal, unifying all the ongoing proceedings.Portugal, unifying all the ongoing proceedings.

• Abduction, swindling, exploitation and abuse of Abduction, swindling, exploitation and abuse of Portuguese workers were the main activities of Portuguese workers were the main activities of this criminal organization.this criminal organization.

• All the victims and offenders were Portuguese. All the victims and offenders were Portuguese.

• Nevertheless, the most important part of the Nevertheless, the most important part of the criminal activity was taking place in Spaincriminal activity was taking place in Spain

• The victims were enlisted for farm work in The victims were enlisted for farm work in Spain. They were promised advantageous Spain. They were promised advantageous working conditions (tasks and pay) and working conditions (tasks and pay) and decent living conditions.decent living conditions.

• Once in Spain (Once in Spain (Rincón de Soto, La RiojaRincón de Soto, La Rioja), ), they were denied any employment they were denied any employment contract, and they were housed in a shed.contract, and they were housed in a shed.

• They spent the nights in that shed, with They spent the nights in that shed, with the door locked.the door locked.

Facts 2

• They were forced to work around 13 They were forced to work around 13 hours a day under inhumane conditions hours a day under inhumane conditions and suffered constant threats of death and suffered constant threats of death and violence. and violence.

• In order to avoid any attempt of In order to avoid any attempt of escaping, they were kept under constant escaping, they were kept under constant and close observation. and close observation.

• The victims did not receive any kind of The victims did not receive any kind of remuneration for the services rendered.remuneration for the services rendered.

Facts 3

Contacting EurojustContacting Eurojust

• Eurojust was contacted by the Portuguese Eurojust was contacted by the Portuguese Prosecutor in charge of the caseProsecutor in charge of the case

• Asking for support in the preparation of a Asking for support in the preparation of a LoR to be sent to Spain. LoR to be sent to Spain.

• A draft of the request was sent to the A draft of the request was sent to the Portuguese desk at Eurojust.Portuguese desk at Eurojust.

Aim of the letter rogatory

• The aim of the request was very broad:The aim of the request was very broad: The The hearings of the suspectshearings of the suspects already identified at that already identified at that

stage stage

Identification of other possible suspectsIdentification of other possible suspects

The gathering of The gathering of informationinformation and and evidencesevidences regarding regarding criminal records, bank accounts, administrative criminal records, bank accounts, administrative information from social security and tax servicesinformation from social security and tax services

The The identification of other workersidentification of other workers being in the same being in the same situation of exploitationsituation of exploitation

• Detailed and complex investigations in Spain were Detailed and complex investigations in Spain were needed.needed.

How Eurojust Acted - 1How Eurojust Acted - 1

• A A level II meetinglevel II meeting between the national members for between the national members for Portugal and Spain was organized in order to discuss Portugal and Spain was organized in order to discuss the casethe case

• It was agreed that the national member for Spain would It was agreed that the national member for Spain would ask Spanish authorities to consider undertaking an ask Spanish authorities to consider undertaking an investigation concerning the exploitation and abuse of investigation concerning the exploitation and abuse of workers (Art 6.a.i EJ Decision).workers (Art 6.a.i EJ Decision).

• Therefore a Spanish investigation was opened.Therefore a Spanish investigation was opened.

• NM for Spain and Portugal asked their authorities to NM for Spain and Portugal asked their authorities to coordinate between themselvescoordinate between themselves (Art 6.a.iii EJ Decision) (Art 6.a.iii EJ Decision)

How Eurojust Acted - 2How Eurojust Acted - 2• The PT NM asked additional information from his The PT NM asked additional information from his

domestic authorities (Art 6.a.v EJ Decision).domestic authorities (Art 6.a.v EJ Decision).

• Information was exchanged between PT and ES Information was exchanged between PT and ES national authorities through Eurojust (Art 6.b and 13 national authorities through Eurojust (Art 6.b and 13 EJ Decision).EJ Decision).

• Both investigations were coordinated with the support Both investigations were coordinated with the support of Eurojust (Art 6.cof Eurojust (Art 6.c EJ Decision).EJ Decision).

• In the context of the coordination In the context of the coordination four level III four level III meetings took placemeetings took place in Spain and Portugal (excellent in Spain and Portugal (excellent cooperation at police and judicial level).cooperation at police and judicial level).

• Parallel investigations were carried out in PT and ES.Parallel investigations were carried out in PT and ES.

• It was possible to define a coordinated strategy and It was possible to define a coordinated strategy and take coordinated actions to both investigations.take coordinated actions to both investigations.

OutcomeOutcome • According to this strategy, EAWs were issued According to this strategy, EAWs were issued

by PT and 19 people were arrested in Spain on by PT and 19 people were arrested in Spain on 2121stst of April 2008 of April 2008

• On the same day, 12 people were arrested in On the same day, 12 people were arrested in PortugalPortugal

• In accordance with previous agreement In accordance with previous agreement achieved through NM of ES and PT, Spain will achieved through NM of ES and PT, Spain will not use grounds for EAW refusal (pending not use grounds for EAW refusal (pending investigations related to same facts).investigations related to same facts).

• This criminal organization was dismantled, half This criminal organization was dismantled, half a million Euro was seized and confiscated, tens a million Euro was seized and confiscated, tens of individuals were arrested and chargedof individuals were arrested and charged

• The criminal activity spread across PT and ES.The criminal activity spread across PT and ES.

• It was carried out by Portuguese citizens against It was carried out by Portuguese citizens against Portuguese citizens.Portuguese citizens.

• Alongside with ES, PT has jurisdiction regarding Alongside with ES, PT has jurisdiction regarding the facts committed in Spain (nationality the facts committed in Spain (nationality principle vs territoriality principle).principle vs territoriality principle).

• Only PT has jurisdiction over the facts Only PT has jurisdiction over the facts committed in PT.committed in PT.

ConflictConflict ofof jurisdictionjurisdiction

A recommendation grounded on Article 6.a.ii of A recommendation grounded on Article 6.a.ii of Eurojust Decision was made to the involved national Eurojust Decision was made to the involved national authorities by ES and PT national members. authorities by ES and PT national members.

According to this recommendation Spanish According to this recommendation Spanish authorities should recognize that authorities should recognize that PT is in better PT is in better position to prosecuteposition to prosecute..

At the same time, Spain should accept to At the same time, Spain should accept to transfer transfer the proceedings the proceedings to PT.to PT.

Both proceedings should be Both proceedings should be concentratedconcentrated in PT for a in PT for a single trial of all the crimes and defendants. single trial of all the crimes and defendants.

Conflict of jurisdictionConflict of jurisdictionHow Eurojust How Eurojust helpedhelped to to solve itsolve it

• Eurojust must be involved in the investigations Eurojust must be involved in the investigations from the very beginning, as occurred in this case.from the very beginning, as occurred in this case.

• Without effective domestic coordination it is not Without effective domestic coordination it is not possible to ensure a good level of European possible to ensure a good level of European coordination.coordination.

• National members must be proactive and take the National members must be proactive and take the initiative in the field of coordination between initiative in the field of coordination between national authorities.national authorities.

• It is necessary to use regularly all the instruments It is necessary to use regularly all the instruments available concerning international cooperation available concerning international cooperation matters.matters.

ConclusionsConclusions

WHICH SOLUTIONSWHICH SOLUTIONS

WITH THE NEW EUROPEAN TEXTS?WITH THE NEW EUROPEAN TEXTS?

• SOLUTIONS REACHED UNDER THE FORMER SOLUTIONS REACHED UNDER THE FORMER VERSION OF EJD. VERSION OF EJD.

ARTICLE 6ARTICLE 6 ( (Tasks of Eurojust acting through its national members)Tasks of Eurojust acting through its national members)::

• 1. When Eurojust acts through its national members concerned, 1. When Eurojust acts through its national members concerned, it:it:

• (a) (a) may ask may ask the competent authorities of the Member States the competent authorities of the Member States concerned concerned to considerto consider::

• (i) (i) undertakingundertaking an investigation or prosecution of specific an investigation or prosecution of specific acts;acts;

• (ii) (ii) acceptingaccepting that one of them may be in a better position to that one of them may be in a better position to undertake an investigation or to prosecute specific acts;undertake an investigation or to prosecute specific acts;

• (...)(...)

Eurojust Decision (2002/187/JHA, 28 February 2002):Eurojust Decision (2002/187/JHA, 28 February 2002):

ARTICLE 7 ARTICLE 7 ((Tasks of Eurojust acting as a CollegeTasks of Eurojust acting as a College):):

1. When Eurojust acts as a College, it:1. When Eurojust acts as a College, it:

• (a) (a) maymay in relation to the types of crime and the offences referred in relation to the types of crime and the offences referred to in Article 4(1) to in Article 4(1) ask the competent ask the competent authorities of the Member authorities of the Member States concerned, giving its reasons:States concerned, giving its reasons:

• (i) (i) to undertake to undertake an investigation or prosecution of specific an investigation or prosecution of specific acts;acts;

• (ii) (ii) to accept to accept that one of them may be in a better position to that one of them may be in a better position to undertake an investigation or to prosecute specific acts;undertake an investigation or to prosecute specific acts;

(...)(...)

Eurojust Decision (2002/187/JHA, 28 February 2002):Eurojust Decision (2002/187/JHA, 28 February 2002):

NEW EUROJUST DECISION (2009/426/JHA, 16 DECEMBER NEW EUROJUST DECISION (2009/426/JHA, 16 DECEMBER 2008):2008):

ARTICLE 6:ARTICLE 6:

• When Eurojust acts through its national members concerned, it:When Eurojust acts through its national members concerned, it:

• ((aa) ) may askmay ask the competent authorities of the Member States the competent authorities of the Member States concerned, giving its reasons, concerned, giving its reasons, toto::

• (i) (i) undertakeundertake an investigation or prosecution of specific acts; an investigation or prosecution of specific acts;

• (ii) (ii) acceptaccept that one of them may be in a better position to that one of them may be in a better position to undertake an investigation or to prosecute specific acts;undertake an investigation or to prosecute specific acts;

• (...)(...)

ARTICLE 7 ARTICLE 7 ((Tasks of Eurojust acting as a CollegeTasks of Eurojust acting as a College):):

1. When Eurojust acts as a College, it:1. When Eurojust acts as a College, it:

• (a) may in relation to the types of crime and the offences referred (a) may in relation to the types of crime and the offences referred to in Article 4(1) to in Article 4(1) ask the competent ask the competent authorities of the Member authorities of the Member States concerned, States concerned, giving its reasonsgiving its reasons::

• (i) (i) to undertake to undertake an investigation or prosecution of specific an investigation or prosecution of specific acts;acts;

• (ii(ii) ) to accept to accept that one of them may be in a better position to that one of them may be in a better position to undertake an investigation or to prosecute specific acts;undertake an investigation or to prosecute specific acts;

• (...)(...)

New Eurojust Decision (2009/426/JHA, 16 December 2008):New Eurojust Decision (2009/426/JHA, 16 December 2008):

LISBON TREATY:LISBON TREATY:

ARTICLE 85, N1:ARTICLE 85, N1:

• «(...) European Parliament and the Council, by means of «(...) European Parliament and the Council, by means of regulations adopted in accordance with the ordinary legislative regulations adopted in accordance with the ordinary legislative procedure, shall determine Eurojust's structure, operation, field of procedure, shall determine Eurojust's structure, operation, field of action and tasks. These tasks may include:action and tasks. These tasks may include:

• ((aa)) the initiation the initiation of criminal investigations, as of criminal investigations, as well as well as proposing the initiation of prosecutions proposing the initiation of prosecutions conducted by competent national authorities,conducted by competent national authorities, particularly particularly those relating to offences against the financial interests of the those relating to offences against the financial interests of the Union;Union;

• ((bb)) the coordination of investigations and the coordination of investigations and prosecutions referred to in point (a);prosecutions referred to in point (a);

• (...)(...)

DECLARATION ON ARTICLE 85(1), SECOND SUBPARAGRAPH:DECLARATION ON ARTICLE 85(1), SECOND SUBPARAGRAPH:• The Conference considers that the regulations referred to in the The Conference considers that the regulations referred to in the

second subparagraph of Article 85(1) of the Treaty on the second subparagraph of Article 85(1) of the Treaty on the Functioning of the European Union should take into account national Functioning of the European Union should take into account national rules and practices relating to the initiation of criminal investigations.rules and practices relating to the initiation of criminal investigations.

Questions?Questions?

Thank YouThank You