Assessing and identifying the EU added value of JITs

The survey conducted for the purposes of this study reveals that JITs are among the most well known means of cross-border cooperation to fight OC. Some survey participants and interviewees confirmed that JITs are especially useful in complex cases presenting transnational dimensions or cross-border ramifications. It was reported that JITs allow for investigative capabilities to be better organised when two or more EU Member States are involved. They also allow competent authorities in participating Member States to undertake investigative measures without a formal request and are said to ease ‘direct’ exchange of information. Some respondents said that JITs have generally improved the investigative capabilities of the EU in the field of OC. Therefore, it appears as if

117 _{See Council Framework Decision 2008/978/JHA of 18 December 2008 on the European evidence warrant for the}

purpose of obtaining objects, documents and data for use in proceedings in criminal matters, OJ L 350, 30.12.2008, p. 72.

118 _{See Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders}

freezing property or evidence, OJ L 196, 2.8.2003, p. 45, Art. 34.2.

119 _{See Art. 6.1(b). This provision has been included to avoid instances where Member States use the EIO to ‘fish’ for}

evidence and obtain evidence abroad that they are not able to obtain under their own domestic legal and constitutional procedures.

120 _{See Art. 14.1, and see para. 4 on time limits and para. 6 on suspensive effect.} 121 _{Art. 6.1(a) of the Directive.}

122 _{In addition, para. (39) of the Preamble states that}

[t]his Directive respects the fundamental rights and observes the principles recognised by Article 6 of the TEU and in the Charter, notably Title VI thereof, by international law and international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and in Member States' constitutions in their respective fields of application.

European cooperation and JITs more specifically have initiated important changes in the professional

culture of law enforcement practitioners across the EU Member States.

Furthermore, as underlined by some of our interviewees, JITs allow for simplifying investigative cooperation at the EU level, while making the model for requesting mutual legal assistance redundant. Some interview respondents perceive the EIO to be useful, especially when an investigation is stuck. The setting up of a JIT and the gathering of evidence within such a team require specific rules, which are better dealt with separately.123 _{Without prejudice to the application}

of the EIO Directive, existing instruments therefore continue to apply to this type of investigative measure.

According to Eurojust, “JITs, along with coordination meetings and coordination centres, assist the Member States in the collection and connection of vital case-related information. These tools provide speedy, results-driven cooperation.”124

In 2014, 122 JITS were supported by national Members, 45 of which were newly formed in 2014, which according to Eurojust has meant an increase of more than 20%. Eurojust also financially supported 67 JITs. Concerning the ‘forms of crime’, among of the 45 new JITs set up in 2014, 14 related to participation in a criminal investigation, 13 to fraud, 11 to drug trafficking, 7 to money laundering and 7 to trafficking in human beings (THB).

Since 2011, Eurojust has hosted the secretariat of the Network of National Experts on Joint Investigation Teams (JITs Network). The JITs Network has functioned since 2005 and is the result of EU Member States’ commitment to designate (at least) one national expert “with a view to encouraging the use of JITs and exchanging experience on best practice”.125 _{These national members}

“represent both the judicial (judges, prosecutors, Ministries of Justice) and law enforcement (police officers, Ministries of Interior) dimensions of a JIT”.126 _{Eurojust promotes the JITs Network and}

supports the national experts. In reality, though, there is only one impartial judge in the JITs Network, whereas two-thirds are prosecutors and ministry of justice representatives, and one-third are police and ministry of interior representatives (see Figure 7). Thus, there is the lack of representation and oversight by impartial judges within the Network.

123 _{Art. 3 of the EIO Directive lays down the ‘scope’ and stresses that}

[t]he EIO shall cover any investigative measure with the exception of the setting up of a joint investigation team and the gathering of evidence within such a team as provided in Article 13 of the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union (1) (‘the Convention’) and in Council Framework Decision 2002/465/JHA (2), other than for the purposes of applying, respectively, Article 13(8) of the Convention and Article 1(8) of the Framework Decision.

124 _{See Eurojust, 2014 Annual Report, The Hague, 2015}

(http://www.eurojust.europa.eu/doclibrary/corporate/eurojust%20Annual%20Reports/Annual%20Report%202014/A nnual-Report-2014-EN.pdf).

125 _{For more information, see “JITs Network” at}

http://www.eurojust.europa.eu/Practitioners/JITs/jitsnetwork/Pages/JITs-network.aspx. According to the JITs Network website, the “National Experts are mainly representatives from law enforcement, prosecutorial and/or judicial authorities. Institutional bodies such as Eurojust, Europol, OLAF, the European Commission and the European Council have also appointed contact points to the JITs Network.”

Figure 7. Professional composition of the JITs Network (in total 65 members)

Source: Authors, based on data provided by Eurojust.

As mentioned earlier, in 2011 Eurojust and Europol developed a JITs Manual. This manual aims at informing practitioners about the legal basis of JITs and how in practice to set up a JIT. In addition, the manual provides advice on the ways in which JITs can be effectively used.127 _{JITs are generally}

set up in situations in which, first, a Member State’s investigations into criminal offences require difficult and demanding investigations having links with other Member States; or second, a number of Member States are conducting investigations into criminal offences in which the nature of the case necessitates coordinated and concerted action in the Member States involved.128 _{According to the}

JITs Manual, “JITs will usually be considered when investigating more serious forms of criminality. However, when considering setting up a JIT, national legislation and operational guidelines should be checked to determine whether the creation of a JIT is subject to a seriousness threshold or any other qualifying criteria.”129

The Eurojust report of 2014 underlines that coordination meetings in the context of JITs have contributed to resolving operational and legal obstacles. These include differences in national legal systems with regard to rules on the gathering of evidence, issues related to the admissibility of evidence or disclosure of information, as well as time limits for data retention.130