SENZA CENSURA n.5
Italy, June 2001
JURIDICAL SYSTEMS' INTEGRATION
International agreements, cadre agreements, bilateral agreements: a trip through present and future integration processes.
By Senza Censura
In this number we are starting to talk in a deepest way about integration between different juridical and police systems which is happening worldwide.
We are just starting and, obviously, we take as reference point the role that Italy is playing in this situation. Above all we would like to give a picture of the progress done in this sector in the last years, so we are going to have a very general look at reference agreements and existing procedures. Then, we are going to deepen other aspects, underlining more or less secret agreements, underground structures which are the real juridical and police systems integration's basis, in particular inside European Union.
International relationships which are carried out by Italy in this soft
sector are moving along three main lines:
-activities linked to european integration process;
-cooperation inside multilateral forum sections which deal with Ministry of the Interior and Justice arguments.
It has to be underlined that bilateral agreements have as basis cadre
agreements which correspond to the third E.U.'s seat; and to the last
justice Palermo forum's agreement in international seat.
In this first article we start from general about E.U.: the main aim, in the cooperation about justice and home affairs, is to create a space of freedom , justice and safety inside E.U. , as it has been said by the Amsterdam Treaty since 1998 (articles 29 to 42). The Council and Commissions' action plan, approved on 3 december 1998, relates to "optimal moods to carry into effects Amsterdam Treaty's provisions".
Its aim is to "warrant people's free circulation and safety too, fighting against criminality".
This is absolutely a step backward in comparison with Schengen Treaty about free E.U. people 's circulation providing for many restrictions to people' s circulation because of necessity to protect from "criminality, terrorism, traffic in drug, human trade, traffic in weapons..."
In this sphere the central Europol's role is underlined , as essential
instrument for a greatest cooperation to an operative level. A common
space of freedom, safety and justice, which has got to be finished within 5 years since its approval, is substituted to the group of laws that creates a defined jurisdictional space carrying to the overcoming of national borders to favourite people , goods and money's circulation.
Compensating measures to improve police forces' coordination have been put beside the concept of people's free circulation, to "conciliate freedom and safety". For this reason the SIS (Schengen Informations System) has been created for informations exchange. It is fed through national nets (N-SIS) linked to a central system integrated by a net called SIRENE, composed by police exponents,gendarmerie, customs and judicial equipment. Since August 2001 SIRENE is going to be substituted by a new communication structure, SISNET, which is going to be an "european informations system" where even immi gration date will be integrated. Now the Schengen space includes 13 countries which Ireland and U.K. must be added, while members composing this space, legally defined and put in the Official Gazette are part of juridical laws that countries candidate to adhesion must transpose in their national legislation. Through these laws it is going to be defined a space into whom defined laws are the same for everybody, and national laws must not be a stop for repressive process in every country. In a more schematic mood , national middle classes want a most high space and action method, to fight against dynamics that can develop inside european proletariat, and not (as they say) against citizens' unsureness,instead determined by cutting policies; far from completing european political integration, there are not discrepancies in common defence of capital's profit. "Internal Justice and Affairs " is the structure of political link; it meets three times every six months and it includes every country's Ministers of Interiors and Justice. Its aim is to give a political direction to current juridical integration processes, with a particular attention to U.E.'s expansion toward east.
There are two operative structures which defend these interest behind law's screen: the first is Europol, the second is Eurojust (not even totally defined;together are going to support the "European Judicial Net".
"Europol" is the "police european office" which aim is to "improve police cooperation between member countries, to fight against terrorism, traffic in drug and other forms of international criminality".
It has been founded in 1995,and its seat is the AIA. Its main function is informations' exchange, collection and analysis, their computerization and communication to member countries' service. For this reason"every member state is a national unit which carries out these functions, and it sends a representative of this unit to defend its own interest. Function and intervention sectors are open and not defined, if not in general terms that they are all-embracing, because otherwise every competence attribution must be passed through the Council's vote, causing a slow-down of repressive action.
Europol is an indipendent structure constituted by an administration council (composed by a member for every state)which designates a director every 4 years. There are also financial controlling bodies: financial supervisor and financial committe. Europol is operative since 1 july 1999.
At Tampere on 15 and 16 october 1999, the European Council has created a "net of institutes for high police officials' training", to gain a common approach and common education. The Council has also instituted the European Police Academy, constituted as a net gathering all training national institutes. It is directed by an Administration Council , formed by national institutes' directors. Every delegation has got one vote and decisions have got to be unanimous;it establishes the yearly training program and other initiatives. The Academy must also elaborate programs for intermediate officials and less qualified employees' training , as for agents engaged with "non-militar" administration of crisis in third countries , and we can clearly understand what it is. Europol, with its training school, represents
a meaningful step in an european police's institution able to overcome
problems linked to a not ever simple relationship between national police; it is a transnational structure to assure the administration of repression in all E.U., without any discrepancy.
Eurojust has been created by the european Tampere's Council to support
Europol, to warrant an "efficacious coordination between national
authorities responsible for legal action" and to help inquiries "relative to organized criminality's cases".
Eurojust unit is not even active and there are only Commission's opinions which hope that the unity has not real precise competences; even if something as struggle against criminality is priority because, in this case too,every new introduction would need the Council's vote. The Commission begs to not limit this structure into a documentation and communication role but to acknowledge its "role of effective coordination", "able to develop an intermediary role between national authorities", even foreseeing Eurojust's possibility to express nations its opinions and formal reccomendetions, and to ask for absolute informations and to warrant them every access to both national structures and Europol's informations.
It will be formed by national representatives , having its juridical
personality and its balance. Eurojust is going to support the European
Juridical Net, becoming its "headquarter", as central coordination unity between its contact points towards whom themselves will have to turn.
The E.J.N. has been adopted by the European Council on 29 june 1998 and it is effective since 25 september 1998. It is formed by expert ministers or their representatives. Its members meet regularly and they have the task to strengthen and to make easy juridical cooperation between E.U.'s states.
They also give information about their countries' practice. These tasks are carried out through contact points designated by every member state. It is also constituted by connection officials, associated to the Net. The J.E.N. has got also the important aim to give member states all necessary informations to make faster requests between states: It is an important debate seat to carry out juridical systems' integration.
With regard to extradition, that has created many problems between France, Spain and Italy, they want to make easier extradition's procedures between member states and mutual acknowledge of resolutions and enforcement of judgements.
The final aim is to harmonize civil and criminal rights systems between
member states. In 1996 the Council approved the act establishing the
convention relative to extradition between E.U.'s member states. It ratifies free circulation of prisoners, that is the impossibility for member states to refuse extradition's request,not even if the criminal state system does not foresee punishability for requests'crime (in particular for conspčiracy or criminal enterprise crimes), in the moment they have the aim to committ crimes provided by the first and the second articles of European Convention for terrorism repression (only few countries,including Italy and Germany, foresee subversive organization crime in the absence of criminal actions).
Any crime can be considered by state as political crime. Political struggle's elimination is ratified, in its different forms, inside E.U.This is one of the most meaningful passages of these laws, because states are judge of themselves, thinking to be democratic; so any opposition can have a politic value and dignity.
If we only look at the unscrupulous use of subversive organization crime in Italy, we can see this law's danger.
In the future it will not be possible a France's refuse of exiles'
extradition acknowledgeing their political persecution by italian state, as it was during past years.
Just in the spirit of extradition convention to create a common space of freedom, safety and justice, recently Italy has stipulated an important agreement with Spain and has signed a connected statement with France.
The treat with Spain (28 november 2000) is very meaningful because it
eliminates extradition procedures between those countries, and because
different laws yet created problems: Spain, not foreseeing judgement by
default, did not allow extradition for men condemned by this way. Now this has been exceeded. In fact Spain and Italy trust each other, and their own democratic systems, so there is no need of warranties ("considering that government system of both states are founded on democratic principles").
They arrive to foresee a common space into which crime sentences of
condemnation and freedom restrictions in current procedures have got full validity even in the case that condemned or imprisoned citizen is the other states' member. Crimes must be "facts relative to terrorism, organized criminality, traffic in drug and in weapons and human treat".
They are all crimes punishable with more than 4 years of prison. We also underline two laws of the treaty : the article number 2 is about
acknowledgement of measures, that's the reason because "juridical
qualification of facts done by requesting part is binding for requested
part". So there are not formal reasons to refuse extradition. The other article (number 4) regards manner of arrest that can be preliminary and without extradition request. One of the two states can ask the other a wanted man's arrest,without a clear request, upon obligation to send early esecution's request. Judgement by default and extradition requests treat (indipendently by trial and juridical situation of the person requested in extradition")are obviously acknowledged, even since the European Council's Minister Committee's statements.
Everyone of these procedures can be supported by Europol, SIS, E.J.N....
Cooperation between Italy and Spain is a first anticipation, to a bilateral level, of the creation of E.U.'s safety, justice and freedom space.
On 29 january 2001, this treat has been followed by the connected statement of italian and french justice ministers about a necessary enforcement of bilateral cooperation with regard to justice. This is a first step to uniform two juridical systems, and is inspired by Amsterdam treaties and European Tampere's Council, to create a common space.
The two countries hope to start up procedures to carry into effect foreseen laws, to "carry out criminal condemn sentences and jurisdictional measures in order to investigate on heavy crimes of organized criminality, human treat , sexual violence, traffic in drug and weapons, recycling and corruption".
Political crimes are not mentioned, while recycling and corruption crimes are considered more important. The statement sets itself also to create inquirying common squads and to to develop connected officials' activity to assure juridical cooperation requests to be efficacious and fast.
To end this first widening we indicate how, both in community instruction and bilateral agreements, it is mentioned the necessity to help cooperation and juridical assistance projects toward countries candidate to enter E.U. ( which will have to receive all those laws), or toward third countries in accordance with an imposition logic marking european imperialistic pole.
In the next number we are going to underline the guide role E.U. and Italy are inside ECIN (European Centre Initiative).
Then we are going to widen UNO's conclusions about transnational criminality after the summit in Palermo, and the last G8's summit conclusions about Justice ( Milano, 26 and 27 february 2001), looking at Italian bilateral agreements with Egypt, Russia and China.