"INSTITUTIONAL SUPPORT TO THE COUNTRIES OF SOUTH EASTERN EUROPE"

Phase B
1st Workshop
Athens, 16th - 22nd February 2003

GENERAL REPORT ON JUCICIAL COOPERATION IN SOUTHEASTERN EUROPE

Introduction

Most Southeastern European countries have made quite remarkable steps of a substantial preparation for joining the EU towards the integration process on the field of judicial cooperation. The level of preparation is, of course, not the same and in some countries the efforts not only need to be intensified, but they also need to be systematized. All the same one has to take into consideration that the changes, which are held to be necessary in the field of criminal law, are so wide and deep reaching in the penal system of a country, that one has to be patient in order to achieve such a goal.
The positive thing is that in all the countries participating in the program the will for undertaking the necessary changes is given. However one has to stress, that there is also a certain danger, when a system is confronted with such crucial changes. The danger is to adopt regulations without a critical estimation about their consequences. For controlling such a danger the competent authorities in the southeastern countries should try to be kept as much informed as possible about the scientific criticism expressed in relation to some of the proposed regulations from the EU itself, in order to be able to decide consciously about the best form of the decisions that they have to take.

Albania
Albania has ratified some of the most important European conventions and their additional protocols. These are:
· European Convention on Extradition
· European Convention on Mutual Assistance in Criminal Matters
· European Convention on the Supervision of Conditionally Sentenced or Conditionally Released Offenders
· European Convention on Validity of Criminal Judgements
· European Convention on the Transfer of Proceedings in Criminal Matters
· European Convention on Suppression of Terrorism
· Convention on the Transfer of Sentenced Persons
· Additional Protocol to the Convention on the Transfer of Sentenced Persons
· Convention on Money Laundering, Search, Seizure, and Confiscation of the Proceeds from Crimes
· Criminal Law Convention on Corruption.
Albania also participates in the following cross - border criminality in the following programs, initiatives and mechanisms: PACO, SPOC, London Statement, GRECO, SPAI and MONEYVAL.
However, the country's process of harmonization in the field of criminal law seems to be quite far behind the level reached from the other southeastern European countries mentioned above. Although the Albanian Constitution gives priority to the international agreements signed from Albania, which after ratification become a part of its internal legislation being superior to it, the problem is that the ratified conventions are rather limited and on the other hand that measures of internal legislation, which implement the context of such conventions are not yet developed.
The field of combating organized crime is quite characteristic for the above mentioned observation. Organized crime is not handled expressively in the Albanian legislation. As such is held every crime committed in complicity and the only special regulation existing refers to criminal offences committed by armed gangs and criminal organizations. All the same one should take into consideration that effort is being made and this can be ascertained by a recent law (2003), which has amended the Criminal Code in the view of money laundering according to the UN Convention against organized crime. The situation is similar in the field of judicial co-operation in criminal matters, where apart from the international instruments signed and ratified from Albania, which are rather limited in number, the compatibility with the provisions for the European Arrest Warrant are held compatible with the Albanian Constitution, while on the field of protection of witnesses and collaborators of justice Albania does not yet have any special legislation and the same is the case with the protection of the victim's rights.
In particular:
1. The protection of financial interests of European Union citizens from the phenomena of fraud or graft is not been specifically provided for in Albanian legislation. There are no specific rules, which would provide for such a protection, expressed specifically. Every entity, natural or legal person, local or foreigner can refer to the legislation and Albanian authorities of justice as long as interests have been violated because of falling a prey to the fraudulent actions or because of abuse of power or corruption of the state administration servants.
2. Combating organized crime is the objective of the legal regulations even in the Albanian legislation. However, the used term "organized crime" is not mentioned in the legislation of the country directly. Instead, there are provisions connected to the organized crime as a phenomenon. Furthermore, with regard with regard to the punishment of corruption in the private sector, the country's Criminal Code has not yet provided for any criminal offence.
3. With regard to detecting and proceeding against the cases of corruption in the public administration and in the judicial system, the country's legislation has not provided for special structures or procedures. In all cases, as long as corruptive phenomena are found, action is taken in accordance with the rules of the Criminal Procedure Code and provisions of the Criminal Code.
4. Concerning the legal entities, Albanian legislation has not provided for any criminal responsibility. The present legislation reflects the attitude that the criminal responsibility is personal and only for the natural persons. In all the cases when a person employed by a legal entity commits a criminal offence which would bring or would bring illegal profits from a legal entity, the country's legislation adopts the attitude that for the criminal offence the natural person shall be punished, while all the proceeds of the legal entity shall be confiscated. In the cases of administrative offences by persons employed by a legal entity, in order for the latter to get a profit, the attitude of Albanian legislation is the administrative punishment through a penalty (money value) of the legal person and the transfer to the account of the state of all the proceeds of the violation or other means with which it was committed.
5. Concerning the problem of the protection of witnesses and collaborators of justice, Albania does not yet have an appropriate legislation. It is being presently worked for preparing a law that would guarantee the protection of the witnesses of a criminal offence and their relatives, as well as protection and privileges for the persons who accept to cooperate with justice.

Bulgaria
In Bulgaria the integration process in the legal frame of the EU on the field of criminal law is especially active on different levels in the last two or three years. The measures undertaken have here also as a main base the reform of the judiciary in Bulgaria, a reform that includes constitutional changes as well for ensuring immunity and irrevocability of the judiciary and other very important requisites for the state of law. On September 27th 2003 these reforms came already in force.
On the other hand the harmonization process in the field of criminal law is focused, as expected, on combating cross border criminality and especially on organized crime, terrorism, cyber crime, trafficking of human beings and drugs, fraud and corruption and money laundering. In most of these fields the efforts have gone so far, that Bulgaria has at the moment its own internal legislation for crimes like spreading of child pornography, trafficking in human beings, membership in an organized criminal group etc., which are aligned with the provisions of the EU relevant legislation. Great importance seems to have been given to the area of fraud and corruption, where a Co-ordination Council for combating offences against the financial interests of the European Communities has been set up, while as long as money laundering is concerned measures have been already undertaken according to the amendments of the directive 2001/97/EC on the field of Bulgarian national law.
Bulgaria gives like the rest southeastern European countries great importance too to the judicial cooperation in criminal matters and in this field the country has not only ratified most of the important conventions, but is has also substantially facilitated the judicial co-operation with EU-countries through the establishment of connections between contact points within the framework of the European Judicial Network and Eurojust.
From the analysis of the statistical data on the number of the requests for legal assistance in criminal and civil matters and the requests for extradition for the period July 2002 - July 2003 it is evident that the flow has increased in both directions - from Bulgaria to other countries and from other countries to Bulgaria. At the same time the tackling of the requests in the Ministry of Justice as a central authority has been accelerated due to the improved software for their processing introduced in 2002 under the PHARE projects.
The number of Bulgarian requests for extradition to EU member-states for the period 1 July 2002-30 June 2003 is 27, prevailing number of them are sent to Spain. The foreign extradition requests to Bulgaria for the same period are 17.
The requests for mutual legal assistance with the EU member-states for the above period are as follows: totally - 449 incoming 462 outgoing.
Still necessary appear to be amendments to the Criminal and Criminal Procedure Code to fully comply with the European standards, namely on confiscation of crime proceeds, recognition and execution of foreign decisions etc. According to national report from the statistical data is evident all the same that the flow of co-operation between Bulgaria and EU-member states has increased in the last year in comparison to 2002 and this is a rather undutiful proof that the mechanisms introduced in the field are having remarkable results.
Bulgaria has built, to a great extent, the required institutional structure for implementation of the European instruments on legal cooperation in criminal and civil matters. The cooperation of the Bulgarian judicial bodies dealing with criminal matters with the judicial bodies of the EU Member States is substantially facilitated by the connections between the contact points within the framework of the European Judicial Network and Eurojust. Substantial efforts are made by the Bulgarian Government for training and qualification of the magistrates and the experts of the Ministry of Justice dealing with extradition, legal assistance in civil and criminal matters and transfer of sentenced persons, in the application of the European legal instruments in the area of Justice and Home Affairs.
From the analysis of the statistical data on the number of the requests for legal assistance in criminal and civil matters and the requests for extradition for the first quarter of 2003 compared to the same period of 2002 it is evident that the flow has increased in both directions - from Bulgaria to other countries and from other countries to Bulgaria what requires additional efforts of the European states for their fast and successful execution.
The implementation of the National Crime Strategy, which defines the priorities of the law enforcement authorities, has been underway since October 2002. The National Crime Strategy and its Action Plan take into consideration the results from the implementation of the 1998 National Anti-crime Strategy. The main emphasis of the two documents falls on: further harmonization of the national legislation with the EU acquis; improvement of co-ordination and co-operation between the executive and judicial branches, the local self-government and civil society structures; enlargement and strengthening of the institutional and administrative law enforcement capacities; prevention as a major tool for restriction of the general and specific crime-breeding factors; optimization of the capacity of the country to restrict crime-breeding factors based on social and economic factors.
On 13 September 2002 the National Assembly adopted a Law on Amendment of the Penal Code (State Gazette No. 92/27.09.2002, in force as of 1 October 2002). A new section "Trafficking in human beings" - Art.159?, Art.159b and Art.159c - was introduced in the Penal Code in accordance with the standards contained in Joint Action of 24 February 1997 on Combating Trafficking in Human Beings and Sexual Exploitation of Children, as well as in order to align the penal legislation with the requirements of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the UN Convention against Transnational Organized Crime. This section criminalizes trafficking in human beings for the purpose of using them for acts of debauchery, forced labor, using their organs or for being held in a state of forced dependency on a national and international level. The new provisions provide corpus delicti for trafficking in children and forceful trafficking by the use of force, deception or dependency, as well as for cases when an organized criminal group has committed the act. The new provisions of the Penal Code are in full compliance with the requirements of the UN Convention and the two supplementing protocols on trafficking and illegal smuggling of people, to which Bulgaria has acceded.
In the field of drugs, the set of measures that have already been implemented represent a significant progress towards improving the operational co-operation between the different bodies and institutions responsible for the implementation of the National Anti-Drugs Strategy and its Action Plan.
In the field of supply reduction Bulgaria is implementing a project under UNODC AD/Rer/01/F35 "Strengthening the capacity for collection and analysis of criminal intelligence in South Eastern Europe". The project supports the strengthening of the analytical capacity of 5 key regional units for combating organised crime, including in the field of combating drug trafficking.
The Republic of Bulgaria proclaims international intolerability of terrorism in whatever form and pursues a consistent policy in that area.
Practical steps have been taken for implementation of UNSC Resolutions 1267 (1999) and 1373 (2001) in view of updating the legal framework of the fight against terrorism and its financing. Within the reported period the following laws were adopted: The Law on the Measures against the Financing of Terrorism was adopted on 5 February 2003 (SG No. 16 of 18.02.2003). It aims at prevention and detection of acts by individuals and legal entities, groups and organizations aimed at financing of terrorism. The measures provided by this law are: freezing of money, financial assets and other property; prohibition to provide financial services, money, financial assets and other property. A list of the individuals and legal entities, groups and organizations against whom the measures of this law are applied is adopted, complemented and modified by Council of Ministers Decision, on the proposal of the Minister of the Interior or the Prosecutor General.
Finally, on 13 September 2002 the National Assembly adopted amendments to the Penal Code, which introduced a legal definition of the notion of "organized crime" and adequate punitive measures in the area of organized crime activities and trafficking in human beings. The organized crime group definition is compliant with the definition under Article 1 of the Joint Action of 1998 on making it a criminal offence to participate in a criminal organization in the Member States of the European Union, as well as with the one in Article 2 of the UN Convention against Transactional Organised Crime. The amendments also include: criminalisation of bribery in the private sector, trade in influence, passive bribery of foreign public officials, bribery of arbiters and, in specific cases, of defence counsels and dependants; extension of the meaning of 'foreign public official'; limitation of the scope of protection providing for acquittal in some cases of active bribery; introduction of fines as another penalty for bribery; more severe punishments for passive and active bribery of judges, jury members, prosecutors and investigators; and inclusion of non-material benefit/advantage in the subject of bribery. Furthermore, computer crimes have been criminalized in accordance with the Council of Europe Convention on Cyber Crime. Furthermore, the amendments to the Penal Code have introduced penalization for terrorism and the financing of terrorism, as well as for: setting up, leading and participating in a terrorist group; conspiring to terrorism; inciting explicitly towards terrorism; and threatening with terrorism. The new provisions stipulate forfeiture of part of or the whole property of terrorist offenders and of those who finance their activities.

FYROM
The situation of the legal frame supporting the integration process of FYROM in the EU in the field of criminal law is on the other hand characterized by an ongoing effort especially in the field of combating corruption, organized crime, and money laundering and trafficking of human beings. This process is facing quite many obstacles and the most serious one is held to be article 17 of the Constitution of FYROM, which forbids the use of any kind of special investigative measures. In April 2003 FYROM introduced a new law on the prevention of corruption, but its successful implementation as well as that of other similar laws prepared on the field of organized crime depends on a wider range of modifications in national legislation and especially in the field of Criminal Code and in that of the Law on Criminal Procedure. One is supposed to simplify here certain procedures, introduce new methods for the detection and prosecution of criminals, while in the field of material criminal law the most important proposed institutions refer to criminal responsibility of legal persons and confiscation of property. At the same time efforts are being made to strengthen the international legal assistance in criminal matters not only with ratification of important international conventions but as well as with a draft of a new law on the field handling with protection of witnesses and victims, examination of witnesses through video links, combined investigations etc. Interesting is also that all these efforts are supported with a wider plan for reforming the judiciary system, the main aim of which is the strengthening of the judiciary independence with constitutional changes.
In order to support the integration process in the frame of the EU FYROM has joined some of the most important multilateral instruments on combating corruption, trafficking of drugs and organized crime, as well as instruments of international legal assistance. The practical problems that one is facing in the field of mutual assistance and which have to do mainly with delays in procedures, insufficient information supporting extradition requests and contradictions in legislation, show that one is supposed to intensify the efforts undertaken in this field.
In spite the intensive international activities and declared strong political will for harmonising national legislation with the European Union standards and other international instruments, the Republic of Macedonia is still far behind their sufficient implementation and establishing efficient system for combating organised crime, corruption and money laundering. A wider anti-corruption programme has not yet been devised and it is necessary to address the shortcomings by building consensus for a national anti-corruption strategy, and by identifying its key components. During the last ten years country was facing different security and political problems that were indirectly and directly connected to the increasing trends in different types of criminal activities. Furthermore, given its geographical position, the country is vulnerable to cross-border crime and corruption also significantly contributes to problems such as trafficking of drugs, weapons and human beings. There are several main obstacles for an efficient anti-corruption regime: not all legislation is in harmony with international standards; the Law on Corruption Prevention still needs revision; there are no Conflict of Interests laws and regulations; lack of institutional framework for efficient fight against corruption etc.
The biggest results in responding to the needs for strengthening the capacities for combating different types of serious crime, and especially organised crime, corruption and money laundering have been achieved thought the active co-operation with the different units of the UN, EU and the Committees within the Council of Europe. In the frame of these activities, the Government has signed several different projects, mostly related to the law enforcement capacities and activities and to defining the lawful possibilities for efficient action and international co-operation in this field. As a result of these co-operation the necessity for efficient starting of the process for improving the national legislation and the organisational structure of the institutions, in compliance with international standards has been additionally pointed out.
There has also been a strong legislative activity for the adoption of amendments to the Criminal Code in order to complete the building of the legal framework for a more efficient prevention and elimination of offences connected with organized crime and human trafficking. Here are some of the proposed provisions:
o Criminal responsibility for legal persons;
o Confiscation of property and international cooperation in the confiscation of property;
o Introduction of the following crimes: Smuggling of migrants (Article 418b), Organizing a group or encouraging the commitment of the offence of human trafficking and smuggling of migrants (Article 418c), as well as Illegal influencing of witnesses (Article 368a), in accordance with Article 70 of the Rome Statute, ratified by the Republic of Macedonia in 2002.
FYROM has also joined some key multilateral legal instruments containing anti-corruption related provisions relevant to an effective fight against corruption. It was the first country to ratify the Council of Europe Criminal Law Convention on Corruption in July 1999, while the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of Proceeds of Crime was ratified in May 2000. The ratification is expected shortly. The country is also a party to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. It signed the United Nations Convention against Transnational Organized Crime and its two protocols in Palermo in December 2000. The country is party to three follow-up programs to monitor and promote the implementation of appropriate measures to combat corruption: the Council of Europe's partial agreement "Group of States against Corruption" (GRECO): the Council of Europe's Select Committee for the Evaluation of Anti-Money Laundering Measures (PC-R-EV), in the framework of the Financial Action Task Force on Money Laundering (FATF); and the Stability Pact Anti-Corruption Initiative's Steering Group.
In the field of international legal assistance, Republic of Macedonia has also ratified some key international instruments: the European Convention on Extradition with its additional protocols, at the European Convention on Mutual Legal Assistance in Criminal Matters With its additional protocol, and the European Convention on the Transfer of Sentenced Persons and its additional protocol. In contrast, the European Convention on the International Validity of Criminal Judgments of 1970 and the European Convention regarding the transfer of Proceedings in Criminal Matters of 1972 have not been signed. As a member of the Council of Europe, the Republic of Macedonia ratified, in June 1999, the Convention for the Transfer of Sentenced Persons, the European Convention on Extradition and the European Convention on Mutual Assistance in Criminal Matters with its additional protocols. In accordance with Article 118 of the Constitution of the Republic of Macedonia, these international documents became constituent parts of the legal system of the Republic of Macedonia on the day of their ratification and the deposition of their instruments of ratification in the Council of Europe.
Several problems have occurred in the implementation of the European Convention on Mutual Assistance in Criminal Matters:
· Article 4 of the Convention is practically not applicable in the Republic of Macedonia, as the letters rogatory by foreign judicial bodies for the hearing of a person in the Republic of Macedonia by competent officials of the requesting party may not be executed: despite the promise by the person that he or she will appear in court on a specific date, in the presence of foreign persons, there is no guarantee that this will take place.
· Article 6 cannot be applied in full, as domestic legislation is still not harmonized with European law: for example, the requesting party cannot be given narcotics as evidence: domestic law requires that narcotics be confiscated on behalf of the Republic of Macedonia and destroyed.
Even though the Republic of Macedonia has recently signed the Second Additional Protocol, there will be problems in the application of its provisions referring to the hearing of parties by telephone of video conference: domestic legislation in the Republic of Macedonia is still not fully harmonized with the conventions, and there is still no appropriate modern technology for the application of such techniques (low level of computerization and lack of training).

Romania
Romania seems to be one of the countries, which has and is still undertaking a wide range of changes for preparing its criminal law system for the standards of the EU. The most important element that has to be stressed, is that these changes are built quite systematically and they are planned to reach up to constitutional level with a draft for constitutional changes which introduces principles like the distinction of powers, the recognition of a fair trial, the independency of the judiciary and special guarantees for the citizen's liberties like the exclusive judicial issuing of a warrant of preventive arrest etc.
On the other hand, in the field of criminal law itself the efforts seem to combine laws of special interest or special complexity, like those for combating different forms of organized crime and money laundering or terrorism and corruption, with changes in the penal code itself or that of the penal procedure. These later changes are important not only because they introduce an increase of procedural guarantees, but also because they establish new institutions, which are held important for combating organized crime like witness protection and undercover investigation. Very important are as well the planned changes in the field of material criminal law, where the proposed changes of the criminal code expand in the general part as well with crucial changes like the introduction of criminal liability for legal entities. Last but not least sufficiently covered seems to be also the field of efforts for judicial assistance in criminal matters, where drafts of special laws are being prepared on international judicial assistance and the European arrest warrant, while Romania takes already part as an observer in the reunions of the European Judicial Network and of Eurojust.
In particular, by the Law on trafficking in human beings Romania has incriminated forms that can be taken by trafficking in human beings, has created the legal framework for using modern investigation techniques, necessary for discovering these acts, and has introduced norms for the protection and assistance of victims of trafficking, of their families, as well of the witnesses. Furthermore, the country has founded the National Witness Protection Office, and persons who are witnesses according to this law and are in a state of danger are to be included in the Witness Protection Program. Also, the government has incriminated the deed of disclosing the real identity, domicile or residence of the protected witness, as well as that of other information which might lead to his or her identification, if they are likely to jeopardize the life, corporal integrity or health of the protected witness an we have inserted clauses of reduction by half of the penalty for persons who denunciate and facilitate the identification and criminal prosecution of other persons who have committed grave offences.
The country's legislation has also incriminated money laundering regardless of the type of offence from the commission of which the goods are coming and we have provided the possibility of confiscating the goods acquired instead of those that are subjects to the offences. The country's legislation has also defined organized criminal groups and has incriminated the initiation, constitution, adhesion or support of such a group in any form. Also, as the country has expanded the scope of goods coming from grave offences committed in organized criminal groups and that are subject to confiscation and, the legislation provides specific activities that can be carried out by bodies of criminal prosecution in order to collect evidence and to identify perpetrators. Such activities are: placing bank accounts and accounts assimilated to these under surveillance; placing communication systems under surveillance; placing under surveillance and/or accessing computer systems. Concerning international cooperation Romania has established that it can have as object, according to each case, international judicial assistance in criminal matters, extradition, identifying, blocking, freezing and confiscating crime proceeds and instruments, conducting joint inquiries, information exchange, technical or other kinds of assistance for collecting and analysing information, training specialised personnel, as well as other activities necessary to attain the purpose intended.
The criminal Procedure Code has also been substantially amended and supplemented with respect to the following institutions:
Measures depriving of and restricting freedom
· Increasing the guarantees granted to juvenile accused or defendants
· Court control over certain measures or acts ordered during the criminal prosecution
· Witness protection
· Undercover investigators
· Expansion of the right to reparation of prejudice
It is also important to stress that through the draft new Criminal Code, amendments are introduced regarding to offences against dignity and other offences connected to freedom of expression, namely, the incrimination for the offence of insult has been removed and all texts referring to insult have been removed from the draft, the offence of outrage committed through insult or slander, the offence of "affront against the nation", the offences of "affront against the emblems and symbols of Romania and emblems and symbols of authorities", as well as "Offences against the symbols of a foreign state" and the provisions concerning criminal liability of legal entities.
In conclusion, it is also important to note that Romania designated as contact points for the European Judicial Network - EJN/RJE two persons having prerogatives in the field of international judicial assistance in criminal matters, from the Ministry of Justice and one person from the Prosecutor's Office attached to the Supreme Court of Justice. Also, according to the model of the European Judicial Network, the country has created, by order of the Minister of Justice and of the General Prosecutor of the Prosecutor's Office attached to the Supreme Court of Justice, a network of local correspondents in the field of European judicial assistance, made up of judges and prosecutors from courts of appeal and tribunals and the prosecutor's offices attached to these, as well as from the contact points of the Ministry of Justice. As an observer, Romania is invited to partake, in each of the EJN/RJE reunions, with one representative. Therefore, its contact points partake by rotation in these reunions, according to the topic of each reunion. For example, the reunion in Aarhus, Denmark, from the period 2-3 December 2002, the reunion in Athens, Greece, 6 - 7 May 2003 and the one in Murcia, Spain, 3-5 June 2003. The participation in the EJN reunions allows Romania's representatives to establish direct contacts with persons who have prerogatives in the field of judicial assistance from the other States that participate, thus facilitating co-operation.