Conference 10th anniversary ECLAN (European Criminal Law Academic Network)

le lundi 25 avril 2016 15:03 Speech ECLAN

It seems to me that the best way to start this speech is simply by wishing a happy birthday to ECLAN. I am very happy to celebrate that 10th anniversary with you and to do that with Vera Jourova and Felix Braz with whom I believe that I largely share a common vision for the future of our European justice.

The European Union is going through a difficult crisis, in particular due to the combination of the refugees crisis and the terrorist threat.

As a former Minister of Finance, I have been involved in the EU reaction to the financial and banking crisis and I have a feeling of “déjà vu” especially with this impression that every step we take is a step too late. But this experience also makes me believe that eventually we will come out of this crisis stronger. Yet the challenge cannot be underestimated.

(EU criminal law and the fight against terrorism)

It is interesting to note that EU Criminal Law stricto sensu has not been mobilised so much to face the phenomenon of Foreign Terrorist Fighters. The focus has been – and rightly so - on police cooperation and exchange of information.

The biggest challenge is a better integration of border control, use of the Schengen information system and sharing and analysis of data at Europol. This is an impressive contrast with the reaction to the 9/11 when the key aspects of the EU reaction were pure criminal law instruments, namely the European Arrest Warrant, the definition of the terrorist offences and the creation of Eurojust.

But :

  • as the new dimension of the terrorist threat materialises in terrible events
  • as it is more and more obvious that the terrorist threat is there to stay for much longer than anyone would wish
  • and as the issue has become not only to prevent departures of radicalised young men to Syria but also dismantling hard core terrorist cells and bringing terrorists to justice
  • firstly, I can only support what Vera Jourova said and what she, together with Felix Braz, has started with regard to judicial measures towards people prosecuted or convicted for terrorism. To give you a figure, there were 115 convictions for terrorism in Belgium in 2015, 10 times more than the average annual number in the last 10 years and in 2016 we are already at 36 convictions. Some of these people are still in Syria but many are in Belgium and everybody knows that imprisonment cannot be our only tool.
  • Secondly, substantive criminal law and in particular the definition of offences: we are now having the debate on the new directive on terrorism. It will no doubt be an interesting debate with the European Parliament and we will stumble across sensitive issues. But what also strikes me is that many Member States are already going further in their national legislations, including Belgium. I am myself in the process of submitting a new Bill to Parliament that touches on the sensitive and delicate issue of incriminating preparatory acts. I am not saying that the Directive should necessarily go much further than what is on the table. It provides a minimum level of approximation that is already useful and the situation is not the same in all Member States. But a European reflexion on these issues, including with the academic world is necessary.
  • And thirdly the urgency in the fight against terrorism forces us to face some major obstacles relating to the gathering of electronic evidence. I will come back to that.
  • Firstly, the European Public Prosecutor. The Commissioner, Felix Braz and myself will take the opportunity of meeting here today to discuss a bit the current situation. The EPPO isn’t born yet. Let us be honest, based on the text that has been slowly weakened with the successive deals in the Council and despite efforts by people like Felix Braz during his Presidency, at the last echography, I can already tell you that the baby is not exactly going to be a beauty. It is likely going to be rather deformed. It is no secret that I am no fan of the structure based on a College and the European dimension is clearly undermined on some key issues.
  • Secondly, we need an ambitious EU approach of the issue of accessing communication data for criminal investigations. Not only terrorists but criminals in general turn more and more to services such as Whatsapp, Viber, Skype or even Facebook and Youtube to prepare or commit their crimes. This creates an enormous obstacle for our investigators because there is a difficult cooperation with these providers who are in most cases not based where the investigation is taking place even if they offer their services there. This very concrete obstacle for thousands of investigations raises difficult but also fascinating issues with regard to jurisdiction in the cyberspace. Felix Braz has launched the work on this and the Dutch Presidency has made it one of its priorities with the support of the Commissioner.
  • And thirdly, I would like to come back to the issue of the prison. All Ministers of Justice are confronted to this paradox of modern criminal law :
    • On the one hand, there is a broad consensus on the fact that the prison can only be a very limited part of the response to the commission of a crime
    • On the other hand, the whole criminal law system is still based on the prison at least as the ultimate horizon and in many cases as a real step in the trajectory of the person.

the mobilisation of the criminal law framework becomes more and more crucial.

Some of the EU instruments have demonstrated their usefulness such as the European Arrest Warrant but in particular the Joint Investigation Teams. I cannot emphasise enough the importance that the French and Belgian Investigation Team set up after the attacks in Paris has had in the investigation that followed.

Regarding the EU criminal law response to terrorism, I would like to insist on 3 issues :

We need specialised approach in the prisons and we need specialised approach in the probation or electronic surveillance and all sorts of alternatives to detention. The EU cannot harmonise our legislation or practices but it can help in coordinating our approaches.

Beyond the integrated approach through approximation, which is not always possible, coordination of our legislative policies are useful to find the right balances in the fight against terrorism, be it for substantive criminal law or for criminal procedures.

(EU criminal law in general)

Ladies and gentlemen,

You will forgive me, I am sure, for having focused so far on the fight against terrorism. With the terrible events of last month in Brussels, this has obviously become even more of a priority for me and the situation had already pushed it on top of the list since the beginning of my mandate 18 months ago.

But we cannot let ourselves lose track of the rest. Life goes on and the challenge is to keep working on all others aspects of criminal justice because they are part of the functioning of our democratic societies.

At national level, and just to give one example, I am convinced that there is no reason for the fight against terrorism to undermine one of my main objectives which is to limit in general the use of pre-trial detention and to reduce the prison population. On the contrary because it is clear that massive imprisonment is not the answer to fight radicalisation.

In the same way, fighting terrorism does not mean we need to slow down on other major projects for EU criminal law. I can in this regard support the priorities that the Commissioner has listed.

EU Criminal Law has changed. When your academic network was set up, it was easy to identify the main instruments and the main orientations. It has become much more complex and multidimensional.

We are also at a stage where, as the Commissioner explained, there has been so much legislation adopted that the priority needs to be on coordinated implementation of the existing instruments. There also, academic analysis, support and scrutiny is crucial.

(An ambitious EU vision)

But this focus on implementation and continuing in the line of what has been started a long time ago does not mean we should lose sight of a longer future and that we should put ambition aside for a while.

Three remarks on this :

But I am still hopeful that the baby will come out with all legs and arms and a brain big enough to live his own life and develop, despite the initial difficulties, progressively into the integrated EU system of prosecution that we need. We will not create the EPPO at any cost: the birth of a monster that will never go further than crawling on his arms would be used by Euroskeptics to show how bad the idea was. But the baby doesn’t have to be cute to learn how to walk and bring the added value we need to fight EU fraud to begin with and other serious cross-border crime in a longer future.

I am very happy that we are moving forward. There is no easy solution. Cooperation with academics will be crucial to find the right legal approach. The University of Luxembourg has organised an important conference in 2015 and my administration is working also closely with the University of Leuven and Liege on this. I can only encourage further specialisation in this important field.

At the end of the day, I am convinced that we need to arrive at an ambitious EU solution where, in some situations that we need to circumscribe, a judicial authority of one Member State directly orders a provider, wherever it is based and wherever the data is stored, to communicate the requested information.

It is difficult to imagine an comprehensive EU criminal law system that does not deal with the issue of the prison. The competences of the EU are limited and the Council of Europe is doing a very important job here. But I believe that we will not avoid a progressively bigger involvement for the EU, one way or another. The recent decision of the Court of Justice in the joint cases Aranyosi and Caldararu, only two weeks ago, that the conditions of detention in the issuing State can affect the execution of a European Arrest Warrant show how much imprisonment and EU criminal law are intertwined.


Ladies and gentlemen,

Let me conclude this intervention.

In these difficult times, as a Minister of Justice but who has in most of his career be a law professor, I cannot enough insist on the fact that the input of the academic world is crucial to help us stepping back from the temptation of the permanent urgency and to look critically but constructively at what the institutions and legislative bodies have been, are and will be doing in the field of European Criminal Law.

In this period, the importance of academic networks such as Eclan is obvious. I know that one of the priorities of Eclan has always been to promote the links not only within the academic world but between the academics and the EU bodies.

I am sure this conference will be another example of this orientation and a good way to celebrate this 10th anniversary.

I wish you fruitful discussions and I thank you for your attention.