Mutual instrumentalization of criminal and migration law from an EU perspective

European Journal of Migration and Law

Volumn 9, Issue 3, 2007, Pages 347-361

  Vermeulen, Gert ^a,b  

^a Department of Criminal Law ^*

^b GHENT UNIVERSITY   (Belgium)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34548578962     PISSN: 1388364X     EISSN: 15718166     Source Type: Journal    
DOI: 10.1163/138836407X225704     Document Type: Review

References (55)

1. Council of the European Union, OJ L 328/17, Directive 90/EC of 28 November 2002 defining the facilitation of unauthorised, entry, transit or residence, Brussels, 5 December 2002. Also see Council of the European Union, OJ L 328/1, Framework Decision 946/JHA of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit or residence, Brussels, 5 December 2002.
2. At UN level, trafficking and smuggling of persons are dealt with in two different protocols to the UN Convention against Transnational Organized crime of 15 November 2000. The importance of the distinction is also emphasised in the Experts Group Report of the European Commission of 22 December 2004.
3. IOM, World Migration 2003, Geneva, 2003, 245;
4. IOM, World Migration 2005, Geneva 2005, 139-152.
5. Commission of the European Communities, COM(2003) 336 final, Immigration, integration and employment, Brussels, 3 June 2003.
6. See also Commission of the European Communities COM(2004) 508 final, First annual report on migration and integration, Brussels, 16 July 2004 en Commission of the European Communities, COM(2004) 4002 final, Area, of Freedom, Security and justice: Assessment of the Tampere Programme and future orientations, Brussels, 2 June 2004, 9-10;
7. Commission of the European Communities, COM(2005) 669 final, Policy Plan on Legal Migration, Brussels, 21 December 2005.
8. A, recent evaluation of the Belgian anti-trafficking policy explicitly suggested that the competence of the Centre be limited to the fight against trafficking and forms of smuggling that go together with force or exploitation (thus not extending it to the consensual type of human smuggling, mentioned in article 77bis of the Belgian Aliens Law), see King Baudouin Foundation, Belgian policy on trafficking in persons, Brussels, 2006, 80.
9. Despite the general principle reflected in Article 27 of the Convention that migrant smuggling is only recognised, in cases where the smuggler is driven by a profit motive, Article 26, under 2, of the Convention, introduces an obligation to have recourse to sanctions for commercial carriers that, even without purpose of gain, have allowed persons to illegally enter the Schengen area.
10. According to Article 11, under 3 and 4 of the two Protocols, State Parties must take the necessary measures, in accordance with their domestic law, to provide for sanctions in cases where commercial carriers fail to ascertain that all passengers are in possession of the travel documents required for entry into the receiving state.
11. Council of the European Union, Council Directive 2001/51/EC of 28 June 2001 supplementing the provisions of Article 26 of the Convention implementing the Schengen Agreement of 14 June 1985, O.J. 10 July 2001,No L 187/45.
12. Article 26, 2 SIC stipulates that the Contracting Parties undertake, subject to the obligations arising out of their accession to the Geneva Convention of 28 July 1951 relating to the Status of Refugees, as amended by the New York Protocol of 31 January 1967, and in accordance with their constitutional law, to impose penalties on carriers who transport aliens who do not possess the necessary travel documents by air or sea from a. Third State to their territories.
13. Article 26, 3 SIC.
14. It provides that the penalties must be dissuasive, effective and proportionate and that either the maximum amount of the applicable financial penalties is not less than €5,000 for each, person carried, or the minimum amount of these penalties is not less than €3,000 for each, person carried, or the maximum amount of the penalty imposed as a lump sum for each infringement is not less than €500,000, irrespective of the number of persons carried.
15. A reference to theGeneva Convention has been transferred to the Preamble (3).
16. Article 4.2 of the EC Directive of 28 June 2001.
17. In 2001 even British Airways officially pointed out that carrier sanctions have inter alia encouraged, the production of high-quality fraudulent documents, stimulated people smuggling, placed airline staff in danger and denied individuals the right to claim asylum. See: J. Forster, Sanctions imposed on Carriers: Impact on Migration Flows and Asylum Requests, Report presented at the occasion of the Ninth Schengen Colloquium 'Towards a Common Approach, to Managing Migration Flows and. Preventing Illegal Immigration', held on 22 and 23 October 2001 in Maastricht and organized by the European Institute of Public Administration (eipa@eipa-nl.com).
18. ETSNo. 112.
19. ETSNo. 167.
20. This possibility was already included in Article 68 of the SIC.
21. For a recent version of the Draft Framework Decision see Council of theEuropean Union, 6472/07 LIMITE COPEN 21, Outcome of Proceedings of JHA Council 15 February 2007 on a Framework Decision on the application of the principle of mutual recognition of judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union, Brussels, 26 February 2007.
22. Leading Governments to negotiate ad-hoc bilateral 'readmission' agreements with states non-party to the 1997 Protocol to the 1983 CoE Convention (e.g. the forthcoming Additional Protocol to the Agreement between Belgium and Morocco of 7 July 1997).
23. See e.g. the new Article 433quinqies, 5° of the Belgian Criminal Code.
24. United Nations, General Assembly Resolution A/RES/55/25, Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, 2005.
25. Council of the European Union, OJ L 231, Directive 81/EC of 29 April 2004 on the residence permit issued, to third country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities, Brussels, 6 August 2004, p. 19.
26. See e.g. United Nations High Commissioner for Human Rights, Recommended Principles and Guidelines on Human Rights and Human Trafficking, New York and Genève, 2002.
27. Established, by the European Commission in 2003 (OJ L 79, 26.3.2003, p. 25) further to the Brussels Declaration of 2002. Recommendation 2 of the Brussels Declaration stipulated that "at European level, an Experts Group, comprising representatives from governments, IGOs, NGOs, international bodies, researchers, the private sector such as the transport sector and other stakeholders, should be set up by the European Commission".
28. Report of Experts Group on Trafficking in Human Beings (Brussels, 22 December 2004), published on the website of the Commission, DG JLS.
29. These grounds include: (1) the willingness of the trafficked, person to press charges and act as a witness in the criminal case; (2) participation of the trafficked person in a social assistance programme aimed at her/his social inclusion either in the country of destination or the country of origin; (3) the involvement of the trafficked person in a civil procedure to claim compensation for damages (Report, pp. 106-107).
30. Report, p. 173.
31. Council of the European Union, OJ C 311, Plan on best practices, standards and procedures for combating and preventing trafficking in human beings, Brussels, 9 December 2005, 1. The Hague Programme, endorsed by the European Council in November 2004, invited the Council and, the Commission to develop in 2005 an action plan with a view to the development of common standards, best practices and mechanisms to prevent and combat trafficking in human beings (section 1.7.1 of the Programme).
32. While preparing the Action Plan, the Commission has stated that "third country nationals who are victims of trafficking but without legal residence status in the EU should not be excluded from this protection, in particular if they have cooperated with Member States' competent authorities by testifying against their traffickers" (Commission of the European Communities, COM(2005) 514 final, Fighting trafficking in human beings - an integrated approach and proposals for an action plan, Brussels, 18 October 2005).
33. Council of Europe, CETS no. 197, Convention on Action Against Trafficking in Human Beings, Warsaw, 16 May 2005. The Convention is open for signature and ratification to both Member States and Non-Member States of the Council of Europe. On 30 September 2006 there were 31 signatures to theTreaty not followed by ratification and two ratifications (by Romania, and Moldova). The Convention will enter into force when there are ten ratifications, including eight Member States. The United Kingdom has not signed, the Treaty yet.
34. Article 14 of this Convention deals with the matter of residence permits and states that each Party shall issue a renewable permit to victims, in one or other of the two following situations or in both: (1) the competent authority considers that their stay is necessary owing to their personal situation; (2) the competent authority considers that their stay is necessary for thepurpose of their cooperation with the competent authorities in investigation or criminal proceedings.
35. European Convention on extradition, Paris, 13 December 1957, European Treaty Series, No 24. See also Resolution (75) 12 on the practical application of the European Convention on extradition, Resolution (78) 43 on reservations made to certain provisions on the European Convention on extradition, Recommendation No R (80) 7 of the Committee of Ministers to Member States concerning the practical application of the European Convention on extradition, Recommendation No R (80) 9 of the Committee of Ministers to Member States concerning extradition to states not party to the European Convention on human rights and Recommendation No R (86) 13 concerning the practical application of the European Convention on extradition in respect of detention pending extradition.
36. European Convention on the suppression of terrorism, Strasbourg, 27 January 1977, European Treaty Series, No 90. See also Resolution (74) 3 on international terrorism and Recommendation No R (82) 1 concerning international co-operation and punishment of acts of terrorism.
37. Article 5.3 of the EU Convention relating to extradition of 27 September 1996.
38. See about this dispute: G. Vermeiden and T. Vander Beken, 'Uitlevering Basken aan Spanje: juridische bedenkingen bij een politieke zaak', Recente Arresten van deRaadvan State, 1995, pp. 221-227.
39. See on the Protocol: S. Langrish, "The Treaty of Amsterdam: Selected Highlights', European Law Review, 1998, p. 11;
40. F. Dehousse, 'Le Traité d'Amsterdam: un mélange de modestie et de complexité', Journal des Tribunaux, 1,997, pp. 725-726.
41. Council of the European Union, Protocol on asylum for nationals of Member States of the European Union, URL: europa,.eu.int/eur-lex/en/treaties/dat/ treaties_en.pdf, 7 February 2002.
42. Council of the European Union, OJ. L 190/1, Framework Decision of 13 June 2002 on the European arrest warrant and thesurrender procedures between Member States, Brussels, 18 July 2002.
43. G. Vermeulen, 'Van Tampere tot Laken. Meer veiligheid ten koste van vrijheid en rechrvaardigheid?', Panopticon, 2002, pp. 1-6.
44. The principle of availability is only one of these initiatives which, could substantially change the shape of international police cooperation (see G. Vermeulen, T. vander Beken, L. van Puyenbroeck and S. van Malderen, Availability of law enforcement information in the European Union, Ghent, Maklu, 2005, 110p).
45. The 1985 Schengen Agreement created, an elaborate security framework to compensate for the removal of internal border controls among participating states. It covers immigration, asylum and visa policy as well as police and judicial co-operation. It also set up a new signalising system for strengthening controls at theexternal borders of the Schengen zone which was called theSchengen Information System (SIS).
46. Commission of the European Communities, com (2005) 234 final, Proposal for a. Regulation of theEuropean Parliament and of the Council on theestablishment, operation and use of the second generation Schengen Information System (SIS II), 31 May 2005.
47. Commission of the European Communities, com (2005) 230 final, Proposal for a Decision of the Council on the establishment, operation and use of the second generation Schengen Information System (SIS II), 31 May 2005.
48. Commission of the European Communities, com (2005) 237 final, Proposal for Regulation of the European Parliament and of the Council regarding access to thesecond generation Schengen InformationSystem (SIS II) by the services in the Member States responsible for issuing vehicle registration certificates, 31 May 2005.
49. EURODAC is a Europe-wide fingerprint identification system to track asylum seekers and illegal immigrants in 14 EU-member-states. Its purpose is to assist in determining which Member State is responsible pursuant to the Dublin II Regulation and to facilitate its application. The principle is that the participating countries fingerprint all adult asylum seekers and if the fingerprint is already held, then the asylum seeker is returned to thecountry where their prints were initially taken. EURODAC contains the biometric data of asylum seekers (see Council of the European Union, OJL 316/1,Regulation 2725/ EC of 11 December 2000 concerning the establishment of 'Eurodac' for the comparison of fingerprints for the effective application of the Dublin Convention, Brussels, 15 December 2000).
50. See Council of the European Union, 16982/06 LIMITE ENFOPOL 225 EURODAC 19, Note from German Delegation to Police Cooperation Working Party on Policy document governing access to Eurodac by Member States' police and law enforcement authorities, Brussels, 20 December 2006.
51. The Commission underlined, that the biometric information contained in EURODAC may be the only information available to identify a person suspected, to have committed a crime or an act of terrorism (Commission of the European Communities, COM 15122/05 CATS ASIM 61 COMIX 805, Brussels, 24 November 2005).
52. Council of the European Union, OJL 213/5, Decision 512/EC on the establishment of the Visa Information System, Brussels, 15 June 2004.
53. Council of the European Union, doc. 6811/05, Conclusions of the meeting Council Competitiveness 7 March 2005.
54. See for a recent version: Council of theEuropean Union, 8198/07 LIMITE VISA 116 CODEC 321 COMIX 337, Draft Regulation of the European Parliament and of the Council concerning theVisa Information System (VIS) and the exchange of data between Member States on short-stay visas, Brussels, 2 April 2007.
55. Commission of the European Communities, COM (2005) 600, Proposal for a Council Decision concerning access for consultation of the Visa Information System (VIS) by designated authorities of Member States and by Europol for the purpose of the prevention, detection and investigation of terrorist offences and of other serious criminal offences, Brussels, 24 November 2005.