Abstract
The Author examines the belated Italian legislation implementing Framework Decision 2002/465/JHA on Joint Investigation Teams. The work focuses in particular on provisions concerning the scope of application of joint investigation teams, their duration and structure, highlighting the missed opportunity to provide for the participation, in the activities of the teams, of representatives of supranational bodies, such as Eurojust and Europol. Also matters regarding investigation measures available to joint teams and exchange of information between their members are examined: overall, the Italian implementing legislation complies with the corresponding EU law. Lastly, attention is paid to the fairly balanced ad hoc rules established for the use, in Italian criminal proceedings, of investigation material gathered by joint teams. However, only bare provisions are dedicated to the use of information lawfully obtained by Italian members or seconded members while part of such teams.
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Notes
- 1.
See Recital 6 of the Preamble, Framework Decision 2002/465/JHA on Joint Investigation Teams, OJ L 162, 20 June 2002, 1.
- 2.
These are very serious crimes, such as organised crime, mafia organised crime, terrorism, child pornography, computer related crimes, etc.
- 3.
Council Resolution of 26 February 2010 on a Model Agreement for setting up a Joint Investigation Team (JIT), OJ C 70, 19 March 2010, 3.
- 4.
See the Joint Investigation Teams Manual, prepared in the framework of the joint JITs Project of Eurojust and Europol, Brussels, 4 November 2011, 15790/1/11, REV 1, 13 f.
- 5.
Under the Stockholm Programme (10–11 December 2009), the European Council has encouraged Member States to use the investigative tool of joint investigation teams as much as possible in appropriate cases, to systematically involve Europol and Eurojust in major cross-border operations, and to inform the European bodies when joint investigation teams are set up (par. 4.3.1). The European Council did the same already during the Tampere Council (15–16 October 1999, para. 43). On the opportunity to involve such bodies, see: Nagy (2009), p. 153 ff., Rijken (2006), p. 104, and Scella (2017), p. 148. On the opportunity to involve Olaf, see De Moor (2009), p. 95 ff.
- 6.
Eurojust National Members, as well as Europol, may suggest the competent authorities of the Member States concerned the setting up of joint investigation teams in specific cases. See: Decision 2002/187/JHA setting up Eurojust with a view to reinforcing the fight against serious crime (OJ L 63, 6 March 2002, 1), amended by Decision 2009/426/JHA (OJ L 138, 4 June 2009, 14), and Regulation (EU) 2016/794 on the European Union Agency for Law Enforcement Cooperation (Europol) (OJ L 135, 24 May 2016, 53). On this point, see De Amicis (2016), p. 10 f.
- 7.
The expression ‘particular reasons’ has not been defined but it can be taken to include, for example, situations where evidence is being taken in cases involving sexual crimes, especially where the victims have been children. Any decision to exclude a seconded member from being present may not be based on the sole fact that the member is a foreigner. In certain cases operational reasons may form the basis for such decisions. This is the explanation given in the Explanatory Report concerning the relevant provision of the Convention of 29 May 2000 on Mutual Assistance in Criminal Matters between the Member States of the European Union, OJ C 379, 29 December 2000, 18.
- 8.
See Art. 3 Directive 2014/41/EU, OJ L 130, 1 May 2014, 1.
- 9.
Court of Cassation, 29 May 2007, Kaneva.
- 10.
Court of Cassation, 27 June 2006, S.L.
- 11.
For more details on rules concerning the use of investigation material gathered by joint investigation teams under the implementing Legislative Decree, see Belfiore (2016), p. 3892 ff.
- 12.
This material can be used by judicial authorities also to ground pre-trial detention orders or other restrictive orders, as well as interception of telecommunications’ orders.
- 13.
The following purposes are listed under Art. 1, para. 10: (a) for the purposes for which the team has been set up; (b) subject to the prior consent of the Member State where the information became available, for detecting, investigating and prosecuting other criminal offences. Such consent may be withheld only in cases where such use would endanger criminal investigations in the Member State concerned or in respect of which that Member State could refuse mutual assistance; (c) for preventing an immediate and serious threat to public security, and without prejudice to subparagraph (b) if subsequently a criminal investigation is opened; (d) for other purposes to the extent that this is agreed between Member States setting up the team.
- 14.
Scella (2017), p. 150 is critical on this point.
- 15.
This Directive (OJ L 119, 4 May 2016, p. 89)—which repeals Council Framework Decision 2008/977/JHA—provides that Member States shall “ensure that the exchange of personal data by competent authorities within the Union, where such exchange is required by Union or Member State law, is neither restricted nor prohibited for reasons connected with the protection of natural persons with regard to the processing of personal data” [Art. 1, par. 2(b)]. For the purposes of this Directive, ‘personal data’ means any information relating to an identified or identifiable natural person (Art. 3, no. 1 – emphasis added –).
- 16.
Communication from the Commission to the European Parliament and the Council. Second Report on the implementation of the EU Internal Security Strategy, Brussels, 10 April 2013, COM(2013) 179 final, p. 5.
- 17.
Surprisingly, the technical report does not mention interpretation and translation costs, that are quite relevant in the activities of joint investigation teams, as demonstrated by experience. See Nagy (2009), p. 156. It is significant that the Model Agreement provides for specific arrangements on this issue (Council Resolution of 26 February 2010, p. 6).
- 18.
See Art. 9 septies, Decision 2009/426/JHA on the strengthening of Eurojust, amending Decision 2002/187/JHA. See also the JITS Funding Guide (version of 19 February 2016), available on the official website of Eurojust.
References
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De Amicis G (2016) I decreti legislativi di attuazione della normativa europea sul reciproco riconoscimento delle decisioni penali. Cassazione Penale (suppl. to no. 5):5–85
De Moor S (2009) The difficulties of joint investigation teams and the possible role of OLAF. Eucrim 3:94–99
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Belfiore, R. (2019). Joint Investigation Teams in the Italian Legislation Implementing Framework Decision 2002/465/JHA. In: Rafaraci, T., Belfiore, R. (eds) EU Criminal Justice. Springer, Cham. https://doi.org/10.1007/978-3-319-97319-7_9
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