Given the trend towards further European integration and the increasing internationalization of certain forms of crime, it frequently occurs that several states are involved in the detection of such crime, as well as in the prosecution and trial of its perpetrators. Nevertheless - as a rule - only one state can ultimately prosecute and try a certain suspect or implement a sanction which has been imposed. Normally it will also be that state having to judge over the legitimacy of the evidence.

It is important to determine with the utmost care whether, where, when, how or against whom certain tracing techniques or methods of coercion are to be used; it is also of major importance to decide which suspects are to be brought to trial where. All this, however, rarely happens at the moment.

Attention should therefore be given to:

• permanent, early and timely - i.e. pre-judicial - control of international police action and evidence gathering in terms of legitimacy and conformity to the applying rules concerning the admittance of evidence;
• careful - i.e. pre-judicial - determination where, when or against whom certain methods of coercion (e.g. house-search, seizure, police arrest) are to be used or other police interventions are to take place, in view of the question where to bring suspects to trial or where to implement an imposed sanction in the final - judicial - stage;
• international and national pre-judicial concertation between police, judicial and government authorities.

Structuring operational European (Union) police co-operation at a pre-judicial stage would represent a crucial step towards an integrated and effective criminal law enforcement system, which at the same time offers the necessary legal guarantees.

As such, it is not only important to have sound and effective systems of judicial and democratic 'post-factum' control. It is also of major importance to develop criteria and tools allowing pre-judicial (preventive) structuring of international police action, e.g. at Europol level.

INTRODUCTION 1

Earlier this year Slovenia entered into partnership with the European Union (EU). It was the 10th country of Central and Eastern Europe, included the Baltic States, to conclude a Europe Agreement and become an Associated Country to the EU.2 With a view to enabling the Central and Eastern European Countries (gradually) to join the EU in the beginning of the next century and in line with the reference in the conclusions of the Essen European Council of December 1994 to the inclusion of Justice and Home Affairs (JHA) matters in the structured dialogue, it is obvious that also JHA co-operation, included police and judicial co-operation, needs to be further intensified.

Exchange, discussion and confrontation of ideas will defintely contribute to this aim. Particularly with regard to policing in Europe however, there is a responsability on the EU to keep the Associated Countries well informed about the way in which Europol is being developed, so that they can be sure to make their own internal organisational dispositions in a way which is at least compatible with the concept of (future) police co-operation within the EU. 3

Given the trend towards further European integration and the increasing internationali- zation of certain forms of crime, it frequently occurs that several states are involved in the detection of such crime, as well as in the prosecution and trial of its perpetrators. Nevertheless - as a rule - only one state can ultimately prosecute and try a certain suspect or implement a sanction which has been imposed. Normally it will also be that state having to judge over the legitimacy of the evidence.

Given that a judicial procedure is the conclusion and objective of all investigations and prosecutions, it is important to determine with the utmost care whether, where, when, how or against whom certain tracing techniques or methods of coercion are to be used; it is also of major importance to decide which suspects are to be brought to trial where. All this, however, rarely happens at the moment.

The present mechanism of European decision-making in the field of judicial and police co-operation in criminal matters.4 will probably keep its intergovernmental character for quite a while. As for now at least, it looks as if the present logic of the third Maastricht pillar is not likely to be radically changed at the occasion of the Intergovernmental Conference: decision- making will probably continue to be governed by the rule of unanimity.

The idea of a 'European judicial space', for the first time raised in the late 70's, has proven to be premature and unrealistic, not at least because the Member States' criminal justice and law enforcement systems are based entirely on the principle of sovereignty. A break-through on this point is only possible in the long run, and topic by topic. In the meantime, the Member States must learn to accept and to handle one another's characteristics and particularities.

The need for democratic and judicial control on European police co-operation and the functioning of Europol in particular will not be dealt with in this paper. Democratic and judicial control can - as a rule - only take place after or sometimes already during police action; thus they can be considered forms of post factum control.

The present text emphasizes the importance and the value of preventive control, by structuring the internatonal police action in the EU at a 'pre-judicial' stage. Pre-judicial co- operation can result in making the present mechanism of intergovernmental co-operation, e.g. at Europol level, more coherent.

In this respect, it is important to take care that there is a permanent, early and timely - i.e. pre-judicial - control of international police action and evidence gathering in terms of legitimacy and conformity to the applying rules concerning the admittance of evidence, that there is a careful - i.e. pre-judicial - determination where, when and against whom certain methods of coercion (e.g. house-search, seizure, police arrest) are to be used or other police interventions are to take place, in view of the question where to bring suspects to trial or where to implement an imposed sanction in the final - judicial - stage and, finally, that there is an international and national pre-judicial concertation between police, judicial and government authorities.

1. PRE-JUDICIAL CONTROL OF INTERNATIONAL POLICE ACTION AND EVIDENCE GATHERING IN TERMS OF LEGITIMACY AND CONFORMITY TO THE RULES CONCERNING THE ADMITTANCE OF EVIDENCE

Not at least for the police themselves it is extremely important to have such control. It is e.g. not easy to know if it is allowed to use or even only carry certain technical tools such as camera' s or pointing-microphones at the occasion of a cross-border observation. Application of the exclusionary rule in cases where police standards apparently not meet the applying judicial rules in a certain country, may have a very frustrating effect on police officers that have been working on these cases. Especially when working together all over Europe, one should be even more careful not to blow up any case; if anyway, it may be blown up for several police teams in several countries. Then harm is done to others as well.

As a conclusion, the public prosecution or any other body formally leading criminal investigation in a certain country should be informed timely - i.e. before juridical consequences have arisen from police action, meaning: before police action has been undertaken - of the intended intervention, and should be asked for juridical advise and permission to act.

Moreover, it is clear that the establishment of a e.g. European network of so-called 'national or federal magistrates' - i.e. magistrates representing the public prosecution body of their country at all operational international contacts - would create a real surplus value in terms of legitimate international police action. Each of them should of course be acquainted with the rules applying in his or her country, and have sort of a binding mandate.

2. PRE-JUDICIAL DETERMINATION WHERE, WHEN AND AGAINST WHOM CERTAIN METHODS OF COERCION ARE TO BE USED OR OTHER POLICE INTERVENTIONS ARE TO TAKE PLACE

As for now, there are at police level no official procedures or guidelines for making such choices. Nevertheless, in many cases police intervention determines both the state which carries out the prosecution and the evaluation of the evidence, as well as the chances of later judicial inter-state cooperation.

When e.g. a controlled drug delivery leaves in Spain with destination Denmark, the exact location of police intervention (Spain, France, Germany, Belgium, The Netherlands, ...) will have an important effect on the further development of the case (e.g. the severeness of criminal sanctions that can be imposed will probably depend on the criminal law of the country where police intervention has taken place). Another example could be an international fraud case, where perpetrators can be found in several countries and the greater number of (financial) victims in still another country (intervention in one of the countries where the perpetrators could be found, would strongly affect the legal position of the victims, who would possibly not even be aware of such intervention and if so anyway, be urged to introduce a civil action or damage claim in another than their native or home country).

Until now, decisions regarding police intervention have not been mutually underpinned or structured in any way. It is difficult to tell what - usually 'ad hoc' - considerations actually motivate such decisions.

It is even more difficult to tell to what extent e.g. the position and the interest of suspects and victims (in terms of nationality, ordinary residence, etc.) are also taken into account when deciding these matters. Anyway, it must be stressed that the legal position and protection of suspects and victims should and can indeed be valuable criteria for decision-making in this pre- judicial stage, for they Bre real criteria in the final judicial stage, being decided then about extradition or transfer of proceedings or transfer of enforcement of sentences.

Given that cross-border police intervention and co-operation cannot be regarded as ends in themselves, but as essential preparation for the final, judicial stage, police and judicial action must already be harmonized at a pre-judicial stage, and be structured according to the same, or at least an equivalent, plan.

This is vitally important for effective criminal law enforcement and adequate legal protection.

Such a plan, or at least a significant step in that direction, does exists for judicial co- operation. Rules or guidelines for determining the state of prosecution and trial can be found in two European conventions, concluded in the early 70ies within the framework of the Council of Europe. Both conventions offer criteria based on - on the one hand - effectiveness of criminal law enforcement and efficiency of police and judicial action, and - on the other hand - humanitarian motives, such as re-socialization of the perpetrator. The concerned treaties are the 1972 European Convention on the transfer of proceedings in criminal matters 5 and the 1970 European Convention on the international validity of criminal judgements.6

It is clarifying to have a closer look at the text of both the 1972 and the 1970 conventions, and in particular of their respective articles 8 and 5.

Article 8 of the European Convention on the transfer of proceedings in criminal matters contains a number of indicia which can justify a transfer of proceedings and take into account the effectiveness and opportuneness of prosecution in a particular state. According to the Convention, another state may be requested to take proceedings in the following cases:

• if the suspected person is ordinarily resident in the requested state;
• if the suspected person is a national of the requested state or if that state is his state of origin;
• if the suspected person is undergoing or is to undergo a sentence involving deprivation of liberty in the requested state;
• if proceedings for the same or other offences are being taken against the suspected person in the requested state;
• if it considers that transfer of the proceedings is warranted in the interests of arriving at the truth and in particular that the most important items of evidence are located in the requested state;
• if it considers that the enforcement in the requested state of an sentence if one were passed is likely to improve the prospects for the social rehabilitation of the person sentenced;
• if it considers that the presence of the suspected person cannot be ensured at the hearing of proceedings in the requesting state and that his presence in person at the hearing of proceedings in the rquested state can be ensured;
• finally, if it considers that it could not itself enforce a sentence if one were passed, even by having recourse to extradition, and that the requested state could do so.

A number of these indicia return in article 5 of the European Convention on the interna- tional validity of criminal judgements. According to the text of the article, it seems justified to request another state to enforce an imposed sanction and thus transferring the enforcement to that other state:

• if the person sentenced is ordinarily resident in the other state;
• if the enforcement of the sanction in the othet state is likely to improve the prospects for the social rehabilitation of the person sentenced;
• if, in the case of a sanction involving deprivation of liberty, the sanction could be enforced following the enforcement of another sanction involving deprivation of liberty which the person sentenced is undergoing or is to undergo in the other state;
• if the other state is the state of origin of the person sentenced and has declared itself willing to accept responsibility for the enforcement of that sanction;
• if it considers that it cannot itself enforce the sanction, even by having recourse to extradition, and that the other state can.

Consequently, from the above named indicia, supplemented by elements concerning the victim, one can derived a number of criteria, allowing international police actions and investigations to be structured at a pre-judicial stage. In my opinion, structuring operational European police action would suppose that several preliminary questions are put, such as:

• in which countries sufficient police capacity can be guaranteed;
• in which countries prosecution is possible;
• in which countries enforcement of a sanction is possible;
• which countries are willing to start prosecution;
• which countries are willing to enforce a sanction;
• in which country prosecution has already been started;
• in which country the suspect is undergoing or about to undergo a sanction involving deprivation of liberty;
• in which countries sufficient items of evidence can be gathered;
• to which countries proceedings could be transferred;
• to which countries enforcement could be transferred;
• which countries are willing to accept proceedings being transferred to them;
• which countries are willing to accept enforcement being transferred to them;
• of which country the suspect is a national or which state is his state of origin;
• in which country the suspect is ordinarily resident;
• in which country the victim is ordinarily resident;
• in which countries the penalties that can be imposed are deemed sufficiently high;
• in which countries the sanctions that are likely to be imposed are considered sufficiently high;
• which countries would benefit financially under enforcement of e.g. confiscation;
• between which countries forfeited or confiscated assets could be shared, etc.

A pre-judicial deliberation about these and other questions would undoubtedly offer quite some advantages, both in terms of criminal law enforcement and legal protection. Police and judicial action should really be harmonized in an early, and therefore timely stage. We may not look upon trans-national police action and co-operation as ends in themselves. They ought to come up to the legitimate expectations of a present-day democratic society.

An - at least interim - conclusion and recommendation can be pointed out as follows:

• when deliberating the questions that have been mentioned and the criteria they represent, and so far as several options offer equal chances for sufficiently effective and efficient criminal law enforcement, one should choose in favour of that option which at most meets the interests of suspects or victims;
• the principle of 'ne bis in idem' should be strictly respected;
• decision-making in the pre-judicial stage may result in splitting up certain international investigations and thus pre-managing the further settlement of the concerned cases; it may e.g. be opportune or moreover prove necessary to decide that certain suspects will be prosecuted and put on trial in one state, and other suspects in another state, or that suspects be sentenced in one state, and transferred to another in order to serve their sentence, etc.;
• the value of preventive - pre-judicial - control and concertation is enormous, especially if compared to possible and often irreparable post factum problems arising from sticking to national sovereignty, in cases where no pre-judicial consultation has taken place.

3. PRE-JUDICIAL INTERNATIONAL AND NATIONAL CONCERTATION BETWEEN POLICE, JUDICIAL AND GOVERNMENT AUTHORITIES

International structuring

Pre-judicial control and structuring of international police action compel timely con- certation with the judicial authorities. As such, the conclusion of agreements between the police and the public prosecution should be made possible by creating a suitable structure at international (European) level.

International or inter-state cooperation in criminal matters also requires political control, as a rule supplied by a minister (mostly the minister of Justice or Foreign Affairs) as the state's representative as regards international law.

The creation of a European forum in which the police, judiciary and government can meet each other, would maximize the efficiency of the fight against international crime. The pre- judicial stage would, moreover, become more transparent, and international operational police action would be integrated into a broader judicial framework.

At present, actual international concertation is at best guaranteed at police level. Through the centralization of liaison officers in The Hague, Europol is currently able to carry out horizontal police consultations on a particular case. Europol's future (post-conventional) role as a European criminal intelligence service will most probably only result in the European Union Member States co-operating even more closely at operational level. According to article 5 of the Europol Convention 7, each national unit - being the liaison body between Europol and the competent national authorities - must post at least one laison officer to Europol, representing the interests of the national unit within Europol. However, the Convention does not govern how pre-judicial police action can or should be structured internationally; neither does it provide for concertation on the judicial or the political level.

In this very context, and in line with the Europol example, the development of a 'cen- tralized' system in which every Member State could be represented by not solely liaison officers (police), but also by liaison magistrates (public prosecution) and liaison officials (government), should be considered.

In this way international pre-judicial initiatives could be tested with regard to their legitimacy and regularity and be jointly discussed in good time. Member States could sovereignly state their position at a pre-judicial, and therefore timely stage, with regard to prosecution or implementation or with regard to granting or requesting legal assistance.

Such consultation mechanism would in fact take the function - in a pre-judicial stage - of the consultative procedure stated in article 31 of the 1972 European Convention on the transfer of proceedings in criminal matters, meant to be used in situations of possible plurality of criminal proceedings. The text of article 31 goes as follows: 'In the eventuality referred to in article 30, paragraph 2, the states concerned shall endeavour as far as possible to determine, after evaluation in each case of the circumstances mentioned in article 8 [supra], which of them alone shall continue to conduct proceedings. [...]'

In addition, such international structure could offer important legal guarantees. Structured consultations between police authorities, public prosecution representatives and government officials could significantly increase the legitimicy, and in any case the transparency, of international action in criminal matters.

According to the Action Programme of the EU Member States and the Central and Eastern European Countries regarding judicial co-operation in the fight against international organized crime 8, co-operation must be improved by among other things the establishment of a contact network of magistrates or other competent authorities, as well as by posting to another state - in accordance with bilateral arrangements - liaison magistrates or authorities, who can assist in the execution of requests for legal assistance. As for the EU, the Council adopted earlier this year a Joint Action concerning a framework for the exchange of liaison magistrates to improve judicial co-operation between the EU Member States.9 The joint action establishes a framework for the posting or the exchange of magistrates or officials with special expertise in judicial co-operation procedures - 'laison magistrates' - on the basis of bilateral or multilateral arrangements. The main aim of creating such framework is to increase the speed and effectiveness of judicial co-operation and to promote the pooling of information on the legal and judicial systems of the Member States and to improve their operation. In the meantime, it has been shown that in most EU Member States, there are no real legal difficulties to prevent the appointment of liaison magistrates at present. 10

It looks as if the establishment of a centralized network of liaison magistrates, represen- ting the interests of the public prosecutor's office in their respective home countries, is not that far ahead.

National structuring

It almost goes without saying that international concertation can only be based on sound consultations at all national levels. Police and public prosecution in each country should be vertically supported by a national body, of which representatives (liaison officers and magistrates) could be detached to participate in a centralized European consultation mechanism, as mentioned previously. Of course also the governments should take part in national consultations and send liaison officials to the international (European) overall concertation body.

The Belgian situation may not be ideal, at least it seems compatible with the future concept as described afore. At police level there is the 'general police support service', which has a division 'international police co-operation', and at judicial level there are two federal (national) magistrates representing the public prosecutor's office in most cases of urgent trans- national operational action.

Structuring operational European police cooperation at a pre-judicial stage would clearly represent a crucial step towards an integrated and effective criminal law enforcement, which at the same time offers the necessary legal guarantees.

As such, it is not only important to have Europol embedded in a sound and effective system of judicial and democratic post factum control. The preventive value of pre-judicial structuring of international police action, in particular at Europol level, must be stressed.

NOTES

1. Part of the ideas presented in this manuscript result from research on 'international police and judicial co-operation in criminal matters and legal protection', carried out at the University of Ghent (Belgium) during the years 1992-1995 and commissioned by the Belgian Federal Services for Scientific, Technical and Cultural Affairs. See in this respect G. Vermeulen, T. Vander Beken, P. Zanders and B. De Ruyver, Internationale samenwerking in strafzaken en rechtsbescherming, Brussels, Politeia, 1995, pp. 307-312. See also G. Vermeulen, Structuring operational European Police co-operation at a pre- judicial stage: future trend in criminal investigation?, First World Conference on New Trends in Criminal Investigation and Evidence, The Hague, 1-5 December 1995, as well as W. Bruggeman, Policing in Europe: a new wave?, Fourth Colloquium 'Schengen and the Third Pillar of Maastricht', European Institute of Public Administration, Maastricht, 1-2 February 1996.

2. It was preceded by Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania and Slovakia.

3. . See in this sense A.J. Langdon, Justice and Home Affairs Cooperation with Associated Countries, European Commission, Phare Programme, October 1995, p. 12.

4. Articles K.1.7 and K.1.9 of the Treaty on European Union (TEU).

5. 15 May 1972, European Treaties' Series, N/ 73, among others ratified by the Czech Republic and Slovakia and signed by Estonia.

6. 28 May 1970, European Treaties' Series, N/ 70, among others signed by Lithuania.

7. Convention based on Article K.3 of the Treaty on European Union, on the establishment of a European Police Office (Europol Convention), 26 July 1995, Official Journal of the European Communities, N/ C 316/1.

8. Council of the European Union, 10042/95 JUSTPEN 125, 22 September 1995, p. 5.

9. Joint Action adopted by the Council on the basis of Article K.3 of the Treaty on European Union, concerning a framework for the exchange of liaison magistrates to improve judicial cooperation between the Member States of the European Union, 22 April 1996, Official Journal of the European Communities, N/ L 105/1.

10. Council of the European Union, 8024/96 JUSTPEN 82, 15 July 1996, pp. 2-6.