EU: Report on the JHA Council
01 March 1998
Since the Council of Justice and Home Affairs Ministers (JHA Council) was set up under the Maastricht Treaty in 1993 it has held 14 meetings, the latest was in Brussels on 19 March. Its meetings now tend to pass largely unreported. The latest got little, or scant, coverage in the media, the UK press covered the introduction of the EU-wide application driving disqualifications (which was not actually adopted) and the UK-Spain ongoing row over the status of Gibraltar. Yet far-reaching decisions affecting the civil liberties of EU citizens and the rights of asylum seekers and refugees figured prominently. Moreover, as the work of the JHA Council steadily moves from just policy-making to policy-making and practice there is even more invisibility and even less accountability (Europol, Dublin Convention, customs operations, training to combat organised crime and illegal immigration).
Below the Joint Action making it a criminal offence to participate in a criminal organisation, the discussions on the Action Plan on "the influx of migrants from Iraq", the Dublin Convention and EURODAC are dealt with in depth. For the UK Presidency Jack Straw, the Home Secretary, said that the Ministers had had a "fruitful lunch" at which they had reached political agreement to extend EURODAC to "illegal immigrants" as well as asylum seekers.
Two other major decisions on openness and access to Council documents and on the receipt by Europol of non-EU information are covered elsewhere in the bulletin.
"association of more than two persons"
The adopted version Joint Action "making it a criminal offence to participate in a criminal organisation in the Member States of the European Union" contain significant changes to draft discussed by the JHA Council in December last year (see Statewatch, vol 7 no 6). The earlier version explicitly referred to "drug trafficking, trafficking in human beings and terrorism" (Article 1.1) and "intimidation, threat, violence" (Article 1.3). These precise terms have been replaced by more general, and potentially all-embracing, terms. Article 1 now refers to "crimes or other offences" and now "include" (thus not exclusively) the crimes and offences set out in Article 2 of the Europol Convention and its Annex - this originally listed 18 "crimes". The list of "crimes" falling under Europol's remit is being extended all the time and is now to include terrorism (see below). The JHA Council can extend the list of crimes without any reference to the European or national parliaments.
The scope of the measure defined as "punishable by a three-year term of imprisonment or a more serious penalty" has been changed to crimes where "a maximum of at least four years or a more serious penalty". The problem remains however that there are "crimes" carrying sentence of four years or more which cover political, trade union and public order situations.
Two or more people acting in "association" who commit a "crime" is extended to undertaking preparatory acts ("even where the offences concerned are not actually committed") and to people who are adjudged, with intent, to have "knowledge of either the aim and general criminal activity of the organisation or the intention of the organised group" (italics added; the distinction is not clear)) is equally punishable. Article 2.2 says a person takes part in the commission of an offence "even if that person does not take part in the actual execution of the activity". The intention is clear:
"Such cases may arise for example when a lawyer or accountant provide their services to a criminal organisation, knowing their activity contributes to the aim of the organisation" (Background note: 17.3.98)
An outstanding issue from the December JHA Council, officially resolved in the adopted text, was:
"The draft joint action aims at reconciling the continental approach whereby participation in a criminal organisation is punishable on the basis of specific evidence (there mu