I thank the committee for the invitation to discuss the EU proposal for a framework decision on the fight against organised crime. The proposal is being made in the context of the provisions of Title VI of the EU treaty which deals with judicial co-operation in criminal matters. These provisions created an objective of providing citizens with a high level of safety within an area of freedom, security and justice. The objective is to be achieved by preventing and combating crime, organised or otherwise, in particular, terrorism, trafficking in people, offences against children, illicit drug trafficking and illicit arms trafficking, corruption and fraud. The means for achieving this objective include closer co-operation between judicial authorities and approximation where necessary of rules on criminal matters.
The proposed framework decision is an instrument designed to achieve approximation of the criminal laws of the member states. The purpose of the proposal is to strengthen the capacity of the European Union and the member states to combat transnational organised crime. Its primary purpose is to have a common EU approach to criminalising the activities of those involved in criminal organisations.
The proposal will replace the EU joint action of 1998 on making it a criminal offence to participate in a criminal organisation in the member states. It is primarily a reformatting exercise. By this I mean it is reformatting the 1998 joint action into a framework decision. Since the Treaty of Amsterdam came into effect on 1 May 1999, framework decisions are the appropriate instruments for adoption as regards approximation of criminal law. However, it is also intended to take account of the similar provisions of the UN Convention on Transnational Organised Crime 2000. The proposal also provides for approximation of penalty levels, responsibility for legal persons, some jurisdictional provisions and provisions as regards victims. The current work programme of the European Union, the action plan implementing the Hague programme, sets the deadline of 2006 for the adoption of this joint action by this framework decision.
There are no major implications for Ireland. The proposal in general reflects the existing EU joint action and the UN convention. We are already signatories to these instruments and it is intended to give them effect in Irish law by way of a provision which the Minister intends to introduce as an amendment to the Criminal Justice Bill 2004. The Minister will submit proposals in this respect to Government in the near future.
Nevertheless, the precise terms of the framework decision must be examined carefully. In the joint action and the UN convention, the approach taken to the definition is to require parties to create an offence on the basis of either the common law conspiracy approach, that is, an agreement between parties to commit an offence, or a participation type approach, that is, participation in the activities of a group knowing that the participation will help the group to achieve its criminal objectives. The latter approach is more common in civil law jurisdictions.
The original Commission proposal did not contain both options but dealt only with the participation approach. Ireland has a reservation on that proposal because we want to ensure the proposed participation approach is acceptable in Irish law. We await the Attorney General's advice in this regard. Our reservation is more by way of being cautious rather than because we believe there is any major problem. The most recent version of the proposal is in CRIMORG 57 which has been circulated to members. That version seeks to restore the option of either approach.
In terms of the progress to date, the proposal was discussed at the multidisciplinary working group on three occasions during the Luxembourg Presidency, 14 March, 27 April and 14 June, and on one occasion, 1 July, during the current UK Presidency. The key issues which emerged relate to the definition of the offence, Article 2, and the applicable penalties, Article 3. In regard to the definition, the current draft contains the option for either the conspiracy approach or the participation approach but opinion remains divided on whether both options should be available. However, it is possible that forthcoming discussions during the UK Presidency will clarify this issue.
In regard to penalties, there are concerns that the penalty provision is not properly formulated to reflect the current EU policy of providing for minimum maximum penalties in framework decisions. The Council decided in April 2002 that where there is a need to approximate penalties and it is imperative to go beyond requiring that the penalties be effective, proportionate and dissuasive, then certain levels of minimum maximum penalties should be provided. This policy means the instrument will set down the minimum maximum penalties that must be provided for in national law. For example, the instrument may provide that an offence is to be punishable by a minimum maximum penalty of ten years.
Accordingly, our law will provide that the offence is punishable by a maximum of at least ten years. However, the courts retain complete discretion to select an appropriate penalty within the range of nought to ten years. The proposal as currently worded could be seen to suggest that such judicial discretion is being limited. The problem is most likely a drafting issue and is expected to be rectified and clarified in re-drafting.
The UK Presidency held discussions on the instrument on 1 July but did not discuss any of the main issues of substance, concentrating instead on more technical matters. The Presidency proposed to make a new proposal on the main Articles 1, 2 and 3 and this is expected before September.
I will briefly explain each of the provisions as contained in the most recent draft, CRIMORG 57. Article 1 provides for the definition of a criminal organisation, which is based on the existing definition in the joint action and in the UN Convention on Organised Crime. It is a structured association of more than two people, established over time to commit offences punishable by at least four years' imprisonment.
Article 2 requires member states to treat as a criminal offence the fact of directing a criminal organisation. It also requires member states to create a criminal offence on the basis of either the participation approach to criminal activity or the conspiracy approach.
Article 3 provides for penalties. Paragraph 1 requires a minimum maximum penalty of ten years for directing a criminal organisation and five years for the other offences. Paragraph 2 requires that serious offences, that is, offences punishable by a penalty of four years or more, committed in the context of criminal organisations be punishable for longer terms than would otherwise be possible.
Article 4 provides that the appropriate penalties can be reduced in the circumstances set out in the article. These include renunciation of criminal activity and providing helpful information to the relevant authorities.
Articles 5 and 6 are standard provisions dealing with liability of and penalties for companies. Article 7 deals with jurisdiction and co-ordination of prosecution. The first paragraph requires each member state to ensure it can prosecute an offence which takes place on its territory even if the criminal organisation is not based or does not pursue its criminal activities there. The second paragraph deals with co-operation in centralising a prosecution in one state where more than one state has jurisdiction to prosecute. The criteria to apply may need more careful consideration.
Article 8 provides that a prosecution is not to be dependent on a complaint and that appropriate assistance should be given to victims' families. Article 9 provides for repeal of the existing joint action. Articles 10 and 11 are standard provisions dealing with implementation, reports and entry into force.
The next discussion on this proposal is likely to take place in September and it is expected that the UK Presidency will make a new text available for that meeting. The proposals in this framework decision are generally in line with what has already been agreed at EU and UN level and in respect of which the Minister intends to bring forward legislative proposals shortly.