Explanatory Memorandum to COM(2022)187 - Amendment of Regulation 2018/1727, as regards the collection, preservation and analysis of evidence relating to genocide, crimes against humanity and war crimes at Eurojust - Main contents
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| dossier | COM(2022)187 - Amendment of Regulation 2018/1727, as regards the collection, preservation and analysis of evidence relating to genocide, ... |
|---|---|
| source | COM(2022)187  |
| date | 25-04-2022 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
The European Union Agency for Criminal Justice Cooperation (Eurojust) coordinates investigations and prosecutions of serious cross-border crime in Europe and beyond. As the European Union’s hub for judicial cooperation in criminal matters, Eurojust supports national investigating and prosecuting authorities in relation to serious crime with which Eurojust is competent to deal in accordance with Regulation (EU) 2018/1727 (‘Eurojust Regulation’). Among others, genocide, crimes against humanity and war crimes (also collectively referred to as ‘core international crimes’) are crimes Eurojust is competent to deal with.
On 24 February 2022, Russia began a military aggression against Ukraine. There is a reasonable ground to believe that war crimes and crimes against humanity have been and are being committed in Ukraine. On 2 March 2022, the Prosecutor of the International Criminal Court announced he had proceeded to open an investigation into the situation in Ukraine 1 . The prosecution services in several Member States as well as in Ukraine have also started investigations of core international crimes, which are supported and coordinated by Eurojust. Eurojust has the expertise and experience to support the investigations and prosecutions of core international crimes, including by facilitating the activities of Joint Investigation Teams (JITs), such as the one set up by some Member States and Ukraine in the context of the current hostilities. Eurojust also cooperates with the Prosecutor of the International Criminal Court.
National authorities are collecting evidence of the international crimes that may have been committed in Ukraine. Due to the ongoing hostilities, evidence cannot be stored securely in Ukraine, requiring that a back-up/storage place be urgently secured by the Union. Thus, in order to coordinate efforts currently deployed by Member States to collect evidence, it is necessary to quickly set up central storage, where evidence collected by Union agencies and bodies as well as national and international authorities or third parties such as civil society organisations could be stored. However, while the Eurojust Regulation provides that Eurojust supports Member States’ action in investigating and prosecuting serious crime, it does not explicitly allow Eurojust to collect, preserve and analyse such evidence in relation to this purpose.
In order to perform its tasks, Eurojust has established a case management system, which contains non-personal data and the personal data referred to in Annex II to the Eurojust Regulation. The case management system mainly aims to support the management and coordination of investigations and prosecutions for which Eurojust provides assistance. The Eurojust Regulation restricts the set-up of the case management system to temporary work files, aiming to support the follow-up on ongoing cases, and an index 2 . Processing of personal data outside of the case management system is prohibited 3 . When coordinating and supporting investigations and prosecutions, Eurojust can temporarily store and exchange evidence in accordance with the rules set out in the Regulation.
The Commission has already proposed to enhance the current set-up of the Eurojust’s case management system with regard to Eurojust’s activities concerning investigations and prosecutions of terrorist offences. On 1 December 2021, the Commission adopted a proposal to improve the functioning of the European Judicial Counter-Terrorism Register at Eurojust 4 . As part of that proposal, the modernisation of the case management system and the digitalisation of the information exchange between national competent authorities and Eurojust are envisaged.
The recent events connected with Russia’s aggression against Ukraine have further demonstrated the urgent need to go beyond the Eurojust’s existing case management system. The current data processing architecture at Eurojust does not allow Eurojust to collect, preserve and analyse evidence relating to core international crimes, including those that are likely being committed in Ukraine, due to the scale of the events and the vast amount of evidence that needs to be stored in case of the commission of such crimes.
Against this background, this proposal seeks to allow Eurojust to collect, preserve and analyse evidence in relation to genocide, crimes against humanity, war crimes and related criminal offences and, when necessary and appropriate, enable its exchange or otherwise make it available to the competent judicial authorities, national or international. The collection of evidence does not amount to providing Eurojust with an executive role as investigating authority, which would not be covered by Eurojust’s mandate, but is meant to ensure Eurojust can receive and centrally store the evidence from different sources. By doing so, Eurojust can support case building work in national and international investigations in a more effective way and provide additional support to the competent prosecution services. To this end, this proposal envisages the establishment of an automated data management and storage facility outside the case management system. In view of the sensitive nature of the personal data involved, their processing, including collection, preservation, analysis and exchange, must comply with the highest standards of data protection and cyber security.
Crucial evidence about core international crimes is usually available in the form of, among others, audio recordings, videos and photographs. Satellite images may also prove useful to demonstrate the commission of these crimes. For this reason, this proposal also aims to extend the categories of data that Eurojust can legally process to videos and audio recordings as well as satellite images and any relevant photographs. With a view to allowing national and international judicial authorities to benefit from the fully-fledged support that Eurojust can provide in the ongoing investigations of core international crimes in the context of the aggression against Ukraine, the amendments to the Eurojust Regulation envisaged in this proposal need to be urgently enacted.
• Consistency with existing policy provisions in the policy area
The proposal contributes to achieving the objective of offering Union citizens an area of freedom, security and justice without internal frontiers, where appropriate measures are taken to prevent and combat crime.
The proposal was adopted in the aftermath of Russia’s aggression against Ukraine as it soon became evident that Eurojust’s current legal framework would need targeted amendments to allow Eurojust to fulfil at its best the objectives to support and strengthen coordination and cooperation between national investigating and prosecuting authorities in relation to core international crimes perpetrated by parties to the conflict.
The proposal follows up on the proposal to amend the Eurojust Regulation and Council Decision 2005/671/JHA as regards the digital information exchange in terrorism cases, which was adopted on 1 December 2021. The two proposals share the same objective to enable Eurojust to fulfil its stronger role envisaged in the Eurojust Regulation in supporting and strengthening the coordination and the cooperation between national authorities investigating and prosecuting serious crime.
The two proposals are complementary as they concern different forms of crime (core international crimes and terrorist offences) and provide for different changes to the Eurojust’s data processing architecture. The proposal on the Counter-Terrorism Register aims at better integrating such a Register in Eurojust’s legal and technical framework so that Eurojust can identify links between simultaneous investigations and prosecutions of terrorist offences. The present proposal intends to allow Eurojust to collect, preserve, analyse and, when necessary and appropriate, exchange evidence of core international crimes by providing for the establishment of an automated data management and storage facility outside the case management system. The negotiations and the text of the proposal on the Counter-Terrorism Register will need to be aligned with the present proposal.
• Consistency with other Union policies
The Union’s reaction to Russia’s invasion of Ukraine has concerned several Union policies. For instance, the Union has swiftly adopted a comprehensive and robust package of restrictive measures. It has stopped treating Russia as a most-favoured-nation within the World Trade Organization framework and has announced an emergency package of nearly EUR 550 million to deal with the humanitarian consequences of the invasion. All these actions, as well as this proposal, aim to ensure that the Union is equipped with adequate tools to address, in full respect of the rule of law and fundamental rights, the consequences of Russia’s military aggression against Ukraine (including criminal liability for core international crimes committed in the context of the conflict). The ultimate goal of all these actions is to restore peace, the promotion of which is the first of the Union’s objectives.
The proposal is consistent with the complementary roles of Europol and Eurojust. Europol supports and strengthens action by the competent law enforcement authorities of the Member States and their mutual cooperation in preventing and combating genocide, crimes against humanity and war crimes, while Eurojust plays a similar role vis-à-vis judicial authorities. Europol also established the “Analysis Project Core International Crimes”. Through the establishment of this Analysis Project, Europol aims to support the competent authorities of the Member States, third Parties and organisations in preventing and combating international crimes such as genocide, crimes against humanity and war crimes, for instance by analysing information and intelligence concerning such crimes. Eurojust and Europol will coordinate and cooperate in the context of their respective mandates, including by updating the operational agreement they signed in 2010 in order to increase their effectiveness in combating serious crime, which falls within their respective competences, and to avoid duplication of work and resources.
The proposal also takes into consideration and fully respects the Union acquis on data protection.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
The proposal is based on Article 85 of the Treaty on the Functioning of the European Union (TFEU). Article 85 TFEU is the legal basis for the Eurojust Regulation, which this proposal aims to amend. Article 85 TFEU provides for Eurojust to be governed by a regulation to be adopted in accordance with the ordinary legislative procedure. The Eurojust Regulation lays down the rules on the establishment and functioning of the Eurojust’s case management system.
• Subsidiarity (for non-exclusive competence)
The area of freedom, security and justice, in the context of which this proposal is adopted, is an area of shared competence between the Union and the Member States in accordance with Article 4(2) TFEU. Therefore, in accordance with the principle of subsidiarity laid down in Article 5(3) of the Treaty on European Union (TEU), action at Union level should only be taken when the aims of the proposed action cannot be sufficiently achieved by Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved at Union level.
Core international crimes, even when committed only in one country and outside the Union, have wide implications for the European and global security and stability. In accordance with the principle of complementarity, when a State is unwilling or unable genuinely to carry out the investigation or prosecution of these crimes despite being competent to do so, the International Criminal Court may investigate and prosecute such crimes, provided that it has jurisdiction.
Action at national level alone cannot therefore ensure prosecution of core international crimes effectively. Member States need to work together to investigate and prosecute them and address common challenges. Among the latter, the challenges connected with the collection, preservation and analysis of evidence related to core international crimes are prominent, and so are those concerning the access to and exchange of such evidence by national and international authorities that can investigate and prosecute the crimes at hand. As the Union agency for criminal justice cooperation, Eurojust is a strong expression of this endeavour by the Member States to bring the perpetrators of these heinous crimes to justice by working together. Eurojust is ideally placed to collect, preserve and analyse such evidence and, when necessary and appropriate, enable its exchange or otherwise make it available to the competent national or international judicial authorities, including the International Criminal Court. Such judicial authorities include, in line with the Eurojust Regulation, prosecution services.
There is therefore a specific need for Union action. This proposal envisages measures that have an intrinsic Union dimension. They aim at improving Eurojust’s ability to act and at allowing Eurojust to fulfil its key objective to support and strengthen the coordination and cooperation between national investigating and prosecuting authorities in relation to genocide, crimes against humanity and war crimes. This objective can only be achieved at the Union level, in line with the subsidiarity principle.
• Proportionality
In accordance with the principle of proportionality laid down in Article 5 i TEU, there is a need to match the nature and intensity of a given measure with the identified problem. The problems addressed in this proposal call for Union-level support for Member States to tackle these problems effectively. The proposal aims to ensure that Eurojust, in addition to its current tasks and powers and without prejudice to them, can also collect, preserve and analyse evidence concerning genocide, crimes against humanity and war crimes and, when necessary and appropriate, exchange it or otherwise make it available to the competent national and international judicial authorities, including the International Criminal Court; hence, it does not touch upon all other forms of serious crime with which Eurojust is competent to deal in accordance with the Eurojust Regulation. Without the amendments suggested by this proposal, Eurojust may not be able to fulfil its key role in supporting and strengthening cooperation between Member States’ national authorities in the investigation and prosecution of core international crimes.
This proposal introduces minimal changes to the Eurojust Regulation which do not overhaul its structure nor alter Eurojust’s functioning. The current powers and tasks of Eurojust remain unaffected. The suggested amendments strengthen Eurojust’s role as already envisaged by the Regulation and take into account the sensitivity of the data to be processed and the need to ensure their protection. Therefore, in line with the principle of proportionality, the proposal does not go beyond what is necessary to achieve this objective.
• Choice of the instrument
The proposal amends the Eurojust Regulation. Article 85 TFEU is the legal basis for the Eurojust Regulation and provides for Eurojust to be governed by a regulation to be adopted in line with the ordinary legislative procedure.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Collection and use of expertise
The Commission urgently adopted this proposal further to several exchanges – on a bilateral basis or in the context of collective meetings – with Eurojust and national authorities involved in the investigations of core international crimes, as well as civil society organisations and other Union entities. All of them pointed out the need for the central storage of evidence as well as the current limitations of the Eurojust’s case management system and their impact on Eurojust’s ability to support and strengthen coordination and cooperation between national investigating and prosecuting authorities in relation to core international crimes, including those that may be committed in the context of the current hostilities in Ukraine.
In addition, an extensive consultation was carried out in 2021 in the context of the preparation of the proposal on digital information exchange in terrorism cases 5 , confirming the need to improve the Eurojust’s case management system.
By the date of publication of this proposal, Eurojust has participated in all the six meetings of the Commission’s Freeze and Seize Task Force, which was established at the beginning of March 2022 to ensure coordination among Member States in the enforcement of the Union restrictive measures against Russian and Belarussian listed individuals and companies, and to explore the possible interplay between restrictive measures and criminal law measures.
The Commission took part in the two extraordinary meetings of the Genocide Network – the Secretariat of which is hosted at Eurojust – devoted to the situation in Ukraine (11 March 2022 and 5 April 2022), where the need for central storage of evidence was also voiced, including by the Prosecutor of the International Criminal Court. The same issues were also raised in several meetings of the Eurojust College and Executive Board.
• Impact assessment
Given the exceptional urgency, no impact assessment could be conducted and the relevant obligation was lifted. That said, the proposal only aims to further improve Eurojust’s capacity to fulfil its objectives laid down in the Eurojust Regulation by establishing an up-to-date technical solution within Eurojust to support Member States’ authorities when dealing with genocide, crimes against humanity and war crimes. The proposal does not change the main principles that underpin the functioning of Eurojust and the existing legal framework on judicial cooperation in criminal matters, nor does it restrict in any way the existing powers and tasks of Eurojust. The expected impacts of the proposed amendments are very limited as the proposal only introduces one specific additional task to Eurojust. It allows for a limited functionality in the existing overall Eurojust architecture and concerns only one out of the 30 forms of serious crime Eurojust is competent to deal with. An assessment of the consistency of the complementary roles of Eurojust and Europol will be carried out under the Eurojust Regulation in force. The Commission will carry out an independent evaluation on the implementation of the Eurojust Regulation and Eurojust’s activities by 13 December 2024 in line with Article 69 i of the Eurojust Regulation.
• Fundamental rights
Due to the importance of processing personal data for law enforcement purposes and Eurojust’s support activities, the proposal underlines the need to ensure full compliance with fundamental rights as enshrined in the Charter of Fundamental Rights of the European Union (‘the Charter’), notably the right to the protection of personal data 6 and the right to respect for private life 7 . This is of particular importance since the proposal involves the processing of operational personal data relating to criminal investigations and prosecutions.
The proposal clarifies that the existing provisions of the Eurojust Regulation setting out the robust data protection regime of Eurojust apply to the automated data management and storage facility where evidence concerning core international crimes will be analysed and preserved, with the exception of those rules directly linked to the technical design of the case management system, i.e. temporary work files and index. They include, in accordance with Article 26(2) of the Eurojust Regulation, also the provisions on data protection set out in Regulation (EU) 2018/1725.
The proposal also requires that Eurojust should first consult the European Data Protection Supervisor (EDPS) following receipt of a notification from the Data Protection Officer containing at least a general description of the envisaged processing operations, an assessment of the risks to the rights and freedoms of data subjects, the measures envisaged to address those risks, safeguards and security measures and mechanisms to ensure the protection of personal data and to demonstrate compliance with the Eurojust Regulation, taking into account the rights and legitimate interests of the data subjects and other persons concerned. The EDPS will be consulted.
The proposal provides that the automated data management and storage facility should comply with the highest standards of cyber security.
4. BUDGETARY IMPLICATIONS
This proposal would have an impact on Eurojust’s budget and its staff needs. Under the legislative financial statement accompanying the proposal, it is estimated that further EUR 15.705 million would be needed for the period 2022-2027 to allow Eurojust to perform the tasks provided for by this proposal. This includes the costs for the setting up and management of the automated data management and storage facility (approximately EUR 500 000 per year) and for the necessary human resources to handle it.
It is estimated that 16 additional posts would be necessary, including judicial cooperation experts, lawyers-linguists, analysts, legal experts, ICT security officers, liaison officers with the International Criminal Court and civil society organisations, and administrative officers. Due to the urgency of the situation, such posts should be filled as soon as possible.
5. OTHER ELEMENTS
• Detailed explanation of the specific provisions of the proposal
The collection, preservation and analysis of evidence of core international crimes is usually carried out by a wide range of different stakeholders, as is currently the case in the context of the ongoing hostilities in Ukraine: national authorities, Union bodies, including JHA agencies, missions under the Common Security and Defence Policy, international organisations and private entities, including non-governmental organisations and civil society organisations.
In this context, Eurojust should be able to centralise evidence available to public authorities while applying the highest security and traceability standards. Such information and (physical and electronic) evidence could be used both for criminal cases before national courts and for prosecutions by the International Criminal Court or any other court or mechanism established for that purpose. The proposal does not however aim to introduce any obligation on national authorities to share such information and evidence.
Article 1 i expressly extends Eurojust’s operational functions with regard to the collection, analysis, preservation and sharing of evidence in support of investigations and prosecutions of core international crimes, in particular genocide, crimes against humanity, war crimes and related criminal offences in accordance with Article 3 i of the Eurojust Regulation. The analytical support provided by Eurojust is one of the main operational tasks that Eurojust already exercises and is further strengthened with this proposal. Eurojust can support the Member States’ competent authorities with analysis of evidence, especially as regards the assessment of the authenticity and reliability of evidence related to facts that are subject to ongoing investigations and prosecutions, including those that Eurojust supports, to ensure the subsequent admissibility of such evidence in national or international courts or equivalent mechanisms. Under the Eurojust Regulation, Eurojust may already transmit evidence to national competent authorities as well as international organisations, in accordance with the provisions setting out Eurojust’s data protection framework, and temporarily store such evidence in support to national investigations and prosecutions. Article 1 i clarifies that the existing framework also applies to evidence collected, stored and analysed in the automated data management and storage facility outside the case management system.
As the current Eurojust’s case management system does not have the technical capacity to centralise evidence on core international crimes in an efficient and secure manner, Article 1(2) aims to provide Eurojust with the operational means to perform its support and coordination tasks with regard to these crimes pending the setting up and full functioning of the new case management system. This would allow Eurojust to perform its above-mentioned tasks even beforehand, including with regard to the core international crimes that are likely being committed in Ukraine. This provision takes into account the sensitivity of the data to be processed and the need to ensure their protection.
Crucial evidence about core international crimes is usually available in the form of audio recordings and videos. Satellite images may also prove useful to demonstrate the commission of these crimes. For this reason, it appears necessary to extend the categories of data that Eurojust can legally process and to amend Annex II of the Eurojust Regulation accordingly (Article 1(3)).