MARKETING SEMINAR MARKETING SEMINAR

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MARKETING SEMINAR MARKETING SEMINAR

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

in reaching a solution in reaching a solution

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

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

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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 jurisdiction

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An illustration of coordination An illustration of coordination

between national authorities between national authorities

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

Decision)

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• 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.

• 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.

A criminal investigation involving A criminal investigation involving

Portugal and Spain

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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.

• 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 Spain

criminal activity was taking place in Spain

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• 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.

• Once in Spain ( Once in Spain ( Rincón de Soto, La Rioja Rincón de Soto, La Rioja ), ), they were denied any employment they were denied any employment

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

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• 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.

• 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.

• 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

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Contacting Eurojust Contacting Eurojust

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

Prosecutor 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.

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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 suspects hearings of the suspects already identified at that already identified at that stage

stage

 Identification of other possible suspects Identification of other possible suspects

 The gathering of The gathering of information information and and evidences evidences regarding regarding criminal records, bank accounts, administrative criminal records, bank accounts, administrative information from social security and tax services

information from social security and tax services

 The The identification of other workers identification of other workers being in the same being in the same situation of exploitation

situation of exploitation

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

needed.

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How Eurojust Acted - 1 How Eurojust Acted - 1

• A A level II meeting level 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 case the 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).

• 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 themselves

coordinate between themselves (Art 6.a.iii EJ Decision) (Art 6.a.iii EJ Decision)

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How Eurojust Acted - 2 How 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 national Information was exchanged between PT and ES national authorities through Eurojust (Art 6.b and 13 EJ authorities through Eurojust (Art 6.b and 13 EJ Decision).

Decision).

• Both investigations were coordinated with the support of Both investigations were coordinated with the support of Eurojust (Art 6.c

Eurojust (Art 6.c EJ Decision). EJ Decision).

• In the context of the coordination In the context of the coordination four level III meetings four level III meetings took place

took place in Spain and Portugal (excellent cooperation in Spain and Portugal (excellent cooperation at police and judicial level).

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

coordinated actions to both investigations.

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Outcome Outcome

• According to this strategy, EAWs were issued by According to this strategy, EAWs were issued by PT and 19 people were arrested in Spain on 21 PT and 19 people were arrested in Spain on 21

^st^st

of April 2008

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

Portugal

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

individuals were arrested and charged

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• 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).

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

committed in PT.

Conflict

Conflict of of jurisdiction jurisdiction

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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.

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 prosecute

position 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 concentrated concentrated 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 jurisdiction Conflict of jurisdiction

How Eurojust

How Eurojust helped helped to to solve it solve it

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• 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.

• 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.

• 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.

Conclusions

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WHICH SOLUTIONS WHICH SOLUTIONS

WITH THE NEW EUROPEAN TEXTS?

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

VERSION OF EJD.

ARTICLE 6

ARTICLE 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, it:1. When Eurojust acts through its national members concerned, 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) undertaking an investigation or prosecution of specific undertaking an investigation or prosecution of specific acts;

acts;

• (ii) (ii) accepting that one of them may be in a better position to accepting 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):

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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:

• (a) (a) may may 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;

(...) (...)

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

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NEW EUROJUST DECISION (2009/426/JHA, 16 DECEMBER NEW EUROJUST DECISION (2009/426/JHA, 16 DECEMBER

2008):

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, to:to:

• (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;

• (...)(...)

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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:

• (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;

• (...)(...)

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

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LISBON TREATY:

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:

• ((a)a) the initiation the initiation of criminal investigations, as well as of criminal investigations, as well as proposing the initiation of prosecutions

proposing the initiation of prosecutions conducted by conducted by competent national authorities,

competent national authorities, particularly those relating to particularly those relating to offences against the financial interests of the Union;

offences against the financial interests of the Union;

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

referred to in point (a);

• (...)(...)

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.

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Questions?

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