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© ERA 2007

ARticlE

DOiERA Forum (2007) 8:233–238

Abstract the article deals in its first part with the legal framework of the Joint investigation team (Jit). Special focus is given to the Framework Decision on Joint investigation teams, which is discussed in detail. After giving an overview of other legal instruments dealing with Jits, the second part of the article deals with the politi-cal context and the need to implement the Framework Decision in the Member States. Due to the fact that according to the report adopted by the European commission only Spain is fully complying with the implementation of the Framework Decision, the level of use of Jits remains very low.

Keywords Police cooperation · Judicial cooperation in criminal Matters · Joint investigation teams

1. Introduction

the objective of providing EU citizens with a high level of safety within an Area of Freedom, Security and Justice is to be achieved by preventing and combating crime while respecting the principles of human rights and fundamental freedoms which are common to the Member States.

crime and, consequently, investigation, have an increasingly cross-border dimen-sion. in order to fight cross-border criminality efficiently, closer judicial and police

Joint Investigation Teams*

Claudia Gualtieri

10.1007/s12027-007-0015-6

Published online: 1 June 2007

claudia Gualtieri, Magistrate, Seconded to the European commissionEuropean commission, DG Justice, Freedom and SecurityRue du luxembourg 46, 1049 Bruxelles, Belgiume-mail: claudia.gualtieri@ec.europa.eu

* this paper is based on the presentation given by the author at the ERA conference on Joint investigation teams: the Fight Against Serious cross-border Organised crime and terrorism, 17–19 May 2006 in trier.

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co-operation amongst Member States is needed. Joint investigation teams are one of the tools which can contribute towards achieving this goal.

that is the reason for which the European council held in tampere on 15 and 16 October 1999 stressed that Jits “were to be set up without delay, as a first step, to combat trafficking in drugs and human beings as well as terrorism”.

2. Legal framework

in accordance with Article 34 of the treaty on European Union, Article 13 of the 2000 convention on Mutual Assistance in criminal Matters1 (hereinafter 2000 con-vention) provided for Jits as an instrument to fight against cross-border criminality. Being a convention, this legal instrument needed to be ratified in order to be enter into force.2

As the ratification process of the 2000 convention proceeded very slowly and as Jits were considered as a key tool in combating cross-border crime, the council con-sidered a legally binding instrument more appropriate and on 13 June 2002 adopted a Framework Decision on Joint investigation teams3 (hereafter: FD).

the FD reproduces Articles 13, 15 and 16 of the 2000 convention, dealing not only with the setting up of teams but also with criminal and civil liability regarding officials.

the FD does not oblige Member States to set up Jits but rather aims to provide Member States with the required legal framework to enable them to do so.

2.1 Setting up of the team

the basic rules for the establishment of a Jit are set out in Article 1(1) of the FD.An agreement between the competent authorities of the Member States concerned

is required. there is no limitation on the number of Member States which may be involved.

the team may be set up on the initiative of two or more Member States, to carry out investigation in one or more Member States, for a specific purpose and for a lim-ited time period. As the aim is to investigate specific cases, it is not possible to use this legal tool in order to set up a generically competent task force for a certain type of crime. Nor is it possible to set up a permanently operational team. Nevertheless, the period initially agreed may be extended by mutual consent.

the FD gives some examples of situations in which the setting up of the team is appropriate:• when a Member State’s investigation into criminal offences requires difficult and

demanding investigations having links with other Member States;

1) council Act of 29 May 2000 establishing in accordance with Article 34 of the treaty on European Union the convention on Mutual Assistance in criminal Matters between the Member States of the European Union, OJ c 197 of 12. 7. 2000, p. 1.2) the 2000 convention entered into force on 23 August 2005 for some member states but at the end of 2006 five ratifications were still lacking; Bulgaria and Romania have also not yet ratified.3) council Framework Decision of 13 June 2002 on Joint investigation teams, OJ l 162 of 20. 6. 2002, p. 1.

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• when a number of Member States are conducting investigations into criminal of-fences in which the circumstances of the case necessitate coordinated and con-certed action in the Member States involved.the request for the setting up of a Jit may be made by any of the Member States

concerned. the team has to be set up in one of the Member States in which the inves-tigations are expected to take place.

2.2 composition of the team

Members of the team must be specified in the agreement. they can be law enforce-ment officers as well as prosecutors and judges.

the participation in a team may be as a member (representative of the Member State where the operations are carried out), as a seconded member (representative of other involved Member States) or as a non-member.

in fact, it is not only Member States which may participate in a team. Recital 9 of the preamble and Article 1(12) of the FD state that the Member States setting up the team should have the right to decide, where possible and in accordance with applica-ble law, to allow other persons not representing them to take part in the activities of the team. these persons may be representatives of Eurojust, Europol and the com-mission (OlAF) or representatives of third countries (in particular of law enforce-ment authorities, such as those of the USA).

the rights conferred upon members and seconded members are not applied to other persons unless the agreement setting up the team provides otherwise. Sec-onded or visiting members are considered as interested observers without any in-vestigative powers. their principal task is to liaise with their domestic authorities on investigative measures required in their home countries as a result of the work of the Jits.

2.3 Operating rules

the general rule is that the lex loci should apply, i.e. the team will carry out its tasks according to the law of the Member States in which it operates.

As a consequence, the leader of the team is a representative of the Member State in which the team operates who acts within the limits of his or her competence under national law. this means that, if investigations are carried out in more than one Mem-ber State, the leadership of the team will change and will be taken over by as many members as the number of Member States in which the team operates.

the Member State in which the team operates is also obliged to make the neces-sary organisational arrangements.

2.4 Powers of seconded members

Seconded members are entitled to be present when investigative measures are taken but the leader, according to the legislation applied, may decide otherwise. On the other hand, the leader may entrust seconded members with the task of taking certain investigative measures if so approved by the competent authorities of the guest State and the seconding State.

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the liaising role of seconded members allows them, whenever an investigative measure to be taken in the seconding Member State is needed, to ask their competent authorities to take it. the request will be considered as a domestic request.

When the team needs assistance from a Member State other than those which have set up the team, or from a third State, the request may be made by the competent authorities of the State of operations, to the appropriate State.

2.5 information management

in accordance with the law and within the limits of their competences, members may provide the team with information for the purpose of the criminal investigation conducted by the team.

According to Article 1(10) of the FD, information lawfully obtained by a member or seconded member while part of a Joint investigation team which is not otherwise available, may be used for the following purposes:• for the purposes for which the team has been set up;• for detecting, investigating and prosecuting other criminal offences with the con-

sent of the Member State where the information became available. the consent may be withheld only where such use would endanger criminal investigations or where it is information in respect of which mutual assistance may be refused;

• for preventing an immediate and serious threat to public security;• for other purposes to the extent that this is agreed between Member States setting

up the team.

2.6 Officials’ liability

With regard to criminal liability, Article 2 of the FD provides that officials from a Member State other than the Member State of the operation are considered as of-ficials of the Member State where they operate with respect to offences committed against them or by them.

concerning civil liability, Member States will be liable for any damage caused by their officials during the operations, according to the law of the State in whose terri-tory they were acting.

2.7 implementation

According to Article 4, the deadline for Member States to take the necessary meas-ures to comply with the provisions of the FD was 1 January 2003. the FD will cease to have effect when the 2000 convention on Mutual Assistance in criminal Matters has entered into force in all Member States.

2.8 Other legal instruments

Apart from the 2000 convention and the FD, several other legal instruments deal with Jits:• Article 24 of the convention on mutual assistance and cooperation between cus-

toms administrations (Naples ii convention) of 18 December 1997 provides for

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the setting up of joint special investigation teams operating in the limited area of customs investigation;

• on 28 November 2002, the council adopted a Protocol4 amending the convention on the establishment of Europol. As required by the tampere conclusions (point 43), the Protocol establishes a legal basis for Europol to participate in Jits;

• on 8 May 2003, the council adopted a non-binding Recommendation on a Model agreement5 for setting up a Joint investigation team;

• Article 5 of the Agreement on mutual legal assistance between the European Un-ion and the United States of America6 provides for Joint investigation teams ‘for the purpose of facilitating criminal investigations or prosecutions involving one or more Member State and the USA where deemed appropriate’;

• according to the Agreement between the European Union and the Republic of ice-land and the Kingdom of Norway7 on the application of certain provisions of the convention of 29 May 2000 on Mutual Assistance in criminal Matters between the Member States of the European Union and the 2001 Protocol thereto, Article 13 of the 2000 convention, dealing with Joint investigation teams, shall be ap-plicable in the relations between iceland and Norway and in the mutual relations between each of these States and the Member States of the European Union.

3. Political context

the European council has stressed on many occasions the need to adopt the required domestic legislation to implement the FD and to use Jits: • the council Declaration on combating terrorism of 25 March 2004 calls on Mem-

ber States to ensure that Europol and Eurojust representatives are associated with the work of Jits as far as possible;

• the council Declaration on the EU response to the london bombings adopted in July 2005 urges Member States to make full use of Jits;

• Section 2.3 of the Hague Programme8 provides that ‘with a view to encouraging the use of such (Joint investigation) teams and exchanging experiences on best practice, each Member State should designate a national expert’.

4) council Act of 28 November 2002 drawing up a Protocol amending the convention on the establish-ment of a European Police Office (Europol convention) and the Protocol on the privileges and immunities of Europol, the members of its organs, the deputy directors and the employees of Europol, OJ c 312 of 16. 12. 2002, p. 1.5) council Recommendation of 8 May 2003 on a model agreement for setting up a Joint investigation team (Jit), OJ c 121 of 23. 5. 2003, p. 1.6) Agreement on mutual legal assistance between the European Union and the United States of America, OJ l 181 of 19. 7. 2003, p. 34.7) Agreement between the European Union and the Republic of iceland and the Kingdom of Norway on the application of certain provisions of the convention of 29 May 2000 on Mutual Assistance in criminal Matters between the Member States of the European Union and the 2001 Protocol thereto, OJ l 26 of 29. 1. 2004, p. 3.8) the Hague Programme: strengthening freedom, security and justice in the European Union, OJ c 53 of 3. 3. 2005, p. 1.

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Pursuant to the latter injunction, the council (Article 36 committee) agreed that all Member States should designate national experts responsible for liaising with other persons and organisations, to provide information and advice and to be in a position to share best practice. to date, the experts concerned have met twice: first in Novem-ber 2005 at Eurojust premises and second in November 2006 at Europol premises. these meeting are extremely important. they put experts in contact one with each other and allow significant exchange of information and best practice.

4. Conclusion

Member States are taking a long time to implement this FD. Some Member States still do not have any implementing legislation in place. the report on the implementa-tion of the FD adopted by the commission in January 2005 takes stock of informa-tion forwarded by 14 Member States (DK, DE, ES, FR, lV, lt, HU, Mt, Nl, At, Pt, Fi, SE and UK). According to the report, only Spain is fully compliant with the FD.

the lack of legislation, together with the lack of awareness among practitioners, has led to a very low level of use of Jits. the repeated calls of the European council to Member States to implement the FD and the work of the network of experts have however raised awareness and Jits are now gradually being used more frequently. According to the information gathered at the second meeting of the network of ex-perts, 15–20 Jits have been established so far. Most of them concern terrorism or drug trafficking. in the majority of cases, Jits are set up by neighbouring States. the feedback from officials involved in Jits is extremely positive.