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Organised and White Collar Crime: Challenges for Alternative Criminal Justice Concepts

Noch drei Wochen bis zum 5. Grünen Polizeikongress! Am 4. März diskutieren wir in Berlin mit Gästen aus Praxis, Zivilgesellschaft, Wissenschaft und Politik über EU-weite grenzüberschreitende Polizeiarbeit, Erfolgsmodelle für De-radikalisierung und Prävention und eine bürgerfreundliche Polizei. Einen Vorgeschmack gibt die Broschüre „Wege zu einer alternativen Sicherheitspolitik“, in der dieser Beitrag erschienen ist. Wissenschaftlerinnen und Praktiker geben Einblicke in ihre Ideen zu europäischer Zusammenarbeit von Polizei und Justiz, bürgernaher Polizei, angemessener Ausbildung und Möglichkeiten parlamentarischer Kontrolle.

Organised and White Collar Crime: Challenges for Alternative Criminal Justice Concepts

Dr. Marianne Wade

Criminal justice will always be a hotly debated subject; classically a matter of difficult balance between the interests of the law-biding and the fundamental rights of those suspected and convicted of crime. If one approaches this policy area from a different perspective, e.g. one trying also to do justice to the interests of victims, the issues involved only increase. The Europeanisation of criminal justicevia the EU for its member states adds further complexity to these topics as new potential for cross-border crime fighting arises in parallel to the erosion of the traditional structures of nation states. This erosion impacts again as it is these traditional structures – the territories and jurisdictions of nation states – which house constitutions and therewith the structures of rights protection to which we are accustomed.
Those advocating alternative criminal justice concepts such as those dear to the Green Party – namely those supporting active citizens, critical of government power and in dubio pro freedom, are often in a difficult position. Though often “pro-European”, liberal thinkers can still feel ill at ease during discussion of informal police and investigative work across apparently irrelevant constitutional borders. A glance at the London-based NGO Fair Trials International’s website (www.fairtrials.net) is enough to make anyone question whether they should be supporting the Europeanisation and, as it currently stands, informalisation of cross-border criminal justice processes. The obvious question is, do we really need this development?
The more law and order oriented would be expected to offer a resounding yes pointing to the threats posed by in particular international terrorism and organised crime. The mention of these two offence areas, undoubtedly the boo-men of the past decades; the fight against whom has justified the undermining of so many core constitutional principles (see e.g. Vervaele in Revue international de droit pénal, 2009), should send alternative thinkers running. To those critical thinkers who highlight the meaninglessness of such concepts or demonstrate them as the tools of those brokering new power structures, these are possibly ideas which should meet resistance. The challenge is to ensure such concepts do not attain sufficient influence to facilitate the (further) erosion of rights. Or is it?

The task at hand is to leave terrorism aside and to look at the challenges presented by organised crime to alternative conceptions of criminal justice. The core problem, long recognised, is of course to define what constitutes organised crime? The European Parliament has in recent years began to favour the term mafia-like structures (see above all the Resolution of the 25 October 2011 on organised crime in the European Union). No matter how critical one may be of such concepts, no matter how unhappy one may be in relation to the lack of information about such organisations and the extent of crime committed by them, if there is any credence at all to the reports of e.g. human trafficking (see e.g. Europol, Trafficking in Human Beings in the European Union, Sept. 2011), any person with even a sliver of interest in human rights must, in consideration of the victims of such crimes, take concepts of organised crime extremely seriously. There may be knowledge gaps, exaggeration, vested interests and media hyperbole but there are certainly problems.
The fact is that there is evidence presented by e.g. Europol and specialist national agencies indicating that there are indeed structures which operate cross-borders with significant flexibility, for great profit and at atrocious cost to victims. Taking a victim or human rights-oriented perspective; in itself an alternative conception of criminal justice, one is doubtlessly forced to take the need to counter such organised crime structures seriously.
The very idea of mafia-like structures; of criminal organisations with a stronger reach across borders than law enforcement agencies, operating with impunity and corrupting officials as they go, is terrifying and prone to causing knee-jerk reactions to fight this powerful enemy. Fundamentally any criminal phenomenon as frighteningly captivating to the imagination as organised crime is a challenge to any rational criminal justice policy. And any liberty-securing criminal justice policymust doubtlessly above all be rational. Ideally, before criminal justice systems can be primed to deal with the challenges associated with organised crime or “mafia-like structures,” one must understand what structures are being combatted and the extent of crime committed. This is a tall order where highly secretive, well-organised criminal structures are involved. Given that many European domestic systems and indeed the fledgling European criminal justice “system” already contain specialist provisions to deal with organised crime structures, those wishing to ensure such powers are not overused or come to unjustifiably or disproportionately threaten liberties, must insist on robust evaluation of their use, justification of their existence and critical stock-taking before new measures are introduced and indeed in reviewing measures in place. A recent call for tenders issued by the Commission for a study of this kind relating to measures introduced under the 2008 Framework Decision, was a response to calls for such knowledge building by the European Parliament. The challenge is to introduce calm and reason into the emotion of criminal justice policy-making. Clearly a solid basis of knowledge, in so far as it can be reliably achieved, provides the best possible basis for this.
In dealing with controversial and emotive concepts such as organised crime, it is important to bear in mind the overall balance and social effect of criminal justice policies alongside the minutia of, e.g. the effectiveness of any single measure. Critical criminal justice policy concepts must aim also to retain a perspective of the overall effect of criminal justice activity. Bill Hughes, the inaugural director of the UK’s serious organised crime agency at a conference recently held by the Institute of Judicial Administration at the University of Birmingham,1  questioned the priority lent to fighting structures providing voluntary users with narcotic substances when, on the other hand, so paltry resources are made available for the combating of the structures making massive profits via the production of counterfeit medicines. Although he recognises the devastating effect the use of psychotropic substances can have on users, he questioned whether these individuals, who voluntarily imbibe such narcotics or more worthy of protection than those patients with diagnosed medical conditions who take factually harmful substances trusting they will benefit their ailing health. The point is that structures importing heroin into the EU will fall under a concept of organised crime, whilst purveyors of counterfeit medicines, who damage the health of multitudes, also for enormous profit, are more likely to be regarded as respectable businessmen. Criminal justice in this case addresses the victimisation of some far more strongly than that of others and the value-judgements underlying this state of affairs may legitimately be questioned.
Alternative criminal justice concepts must look not only at the functioning of criminal justice norms in the context within which they are presented. We may not simply accept the rational of such policy suggestions overall but must question the social values which underlie the priorities set. In the words of Bill Hughes “the Godfather has much to answer for.” A Hollywood film decisively marks what we as citizens regard as a legitimate target of policies against organised crime. The challenge is to ensure that something more rational steers us. The evolution of criminal justice structures at the EU level provides alternative thinkers with a unique opportunity to rise to this challenge. We have an opportunity to consider carefully what such structures should be used for. Surely there is no better time to debate which harms justify the use of common, supra-national efforts?
The so-called “eurocrimes” listed in article 83 TFEU provide a good, but not the exclusive, basis for thought reflecting upon which groups of victims for example justify the use of stronger powers. The challenge is to ensure this conception is truly rational. Criminal justice policy, especially at the supra-national level, has thus far been developed by executives and not subject to multi-facetted debate. Alternative concepts should address questions as to whether the right social problems are tackled. Undoubtedly where victims are regularly drawn from economically deprived countries to furnish illegal markets within the EU – as is often the case in trafficking human beings cases, there is a moral imperative to act effectively. The basis of EU action should, however, be well justified and proportionate. Any specialist laws introduced should also exclusively be used against those types of criminal for which they are intended. Experiences with the European arrest warrant demonstrate how an important measure can be undermined by overly-broad use. We should, however, take some time to reflect upon who we identify as an organised criminal.

When reflecting upon organised crime and any role of EU structures in combatting it, the principle of subsidiarity naturally demands that the EU must be called upon to act only when the member states are less well-placed to do so themselves. Groups of criminals, acting across borders to take advantage of weaknesses in territorially-bound enforcement systems are perhaps the obvious catalyst to such action given increasing evidence that domestic criminal justice practitioners are regularly unable to deal satisfactorily with such cases (see e.g. the results of the EuroNEEDs study2). The question as to whether all such criminal activity – or only very serious aspects – justifies equivalent action further requires careful consideration.
In another contribution prepared for the Birmingham conference, a young prosecutor, Dr Lutz Roth reported the frustration caused to practitioners when identifying criminal activity of a moderate level but being unable to pursue a case “just” because the person is across a border. His analysis of data provided by the EuroNEEDs study but tallying with his own practical experience in Germany indicates a weariness amongst practitioners caused when they cannot proceed – in his case, against a perpetrator resident in Poland although he would be able to were the perpetrator in Munich which is further away in terms of geographical distance. There is anecdotal evidence that practitioners may be giving up on cases simply because of the cross border elements and in doing so becoming disillusioned with any idea of European criminal justice. The image presented is of perpetrators e.g. of frauds, burglaries and robberies – crimes with very significant impact upon their victims but well below the threshold of seriousness required to trigger EU agency activity – deliberately being undertaken across borders in order to leave criminal justice structures impotent. Moving away from concepts such as “mafia-like structures,” it is crucial to include such considerations in a conception of organised, cross-border crime. This is not what comes to mind when such phrasing is used, but it is deliberate, criminal exploitation of enforcement weakness causing significant social harm. It is organised crime in the semantic sense and may involve “mafia-like structures”. The challenge is to quantify it, to decide whether it warrants any special treatment as organised crime or not and provide for an appropriate response to be made by the criminal justice structures deemed appropriate, whether domestic or not. It is essential that practitioners know what criminal justice response is appropriate and what is not. This contribution highlights the need to critically examine the very concept of organised crime before drawing up policy and practice proposals of any kind. What is it that warrants special measures? The severity of the offences involved or the mafia-like structures behind even less serious offences. Al Capone was famously convicted for tax offences. In our common European approach to crime, we must decide whether we value efficient punishment such as this e.g. over correct labelling and stigmatisation.
The EuroNEEDs study clearly demonstrates problems experienced by practitioners currently combatting forms of criminal activity more clearly accepted as organised crime (e.g. human trafficking). No matter what efforts have been made by individual member states to provide for efficient mechanisms, investigators and prosecutors consistently fail to recognise the full extent of criminal activity (individual offences are not identified as part of a broader, organised cross-border context). Frustratingly, even where they do recognise what they are dealing with, practitioners are often forced by circumstances to limit their investigations to their own jurisdictions or what they can handle within a manageable network. This is a challenge for the fledgling arena of European criminal justice.
Any alternative concept must, of course, bear in mind the dynamic situation. The changed Europol and Eurojust Decisions and the improved informational position those agencies will be placed in as a result, should mean the situation improves as far as information is concerned. For large-scale cases joint investigation teams and other mechanisms already available do offer ad hoc solutions but such measures dominate participating practitioners’ activities for the duration of their existence meaning they remain absolutely exceptional measures. Any concept of criminal justice requires consideration of whether this should be the case and which criminal activities potentially justify more systematic criminal justice responses.
At this point, I believe my central point has become clear. There are problems faced by practitioners within the EU in effectively tackling cross-border cases and these require serious consideration. Fortunately for academics they, above all, require further research in order to guide rational policy-making. The need for liberty-restricting specialist measures to tackle certain cross-border crime phenomena requires critical evaluation; criminal phenomena must be quantified, the efficacy and proportionality of criminal justice reactions analysed.

Alternative criminal justice concepts, however, stand at an interesting juncture. As Rebecca Harms stated in the Green Party debate on the future of European criminal justice in the European Parliament last December, these concepts are raised by persons fundamentally critical of the use of state power and criminal justice systems. The central tenet of that session was, however, that EU criminal justice presents an opportunity to discuss the very fundamentals of criminal and indeed social justice achieved via it anew. Issues such as that of social justice are also key matters for those advancing alternative criminal justice concepts.
Concepts such as organised crime present challenges in ensuring they are not used in an emotive way only to justify further repressive mechanisms and laws. The challenge is to ensure such concepts, when being negotiated in a supra-national concept, are lent a proper, rational and sensible meaning. Cooperation amongst academics and policy-makers as presented by this brochure are hopefully an opportunity to achieve just this.
Organised crime and white-collar crime (whether intended to mean corruption associated with facilitating organised crime as some European Parliament documentation appears to indicate or more broadly crimes committed by socio-economically more powerful perpetrators) are challenging concepts because they present loaded concepts which can be used to demand greater state power, and to emotively undermine freedoms on the one hand. On the other, they also refer to criminal activities which prey on particularly defenceless victims because the later are in so far a weaker socio-economic position than the perpetrators. The challenge to those proposing alternative criminal justice concepts is to balance the reflex to fight the advance ofexecutive state power whilst ensuring effective victim protection. The fundamental challenge posed is to think fast enough; to acquire sufficient and detailed knowledge to advance a rational basis upon which to propose policy. To ensure EU criminal justice can be used effectively against those criminals who exploit territorial boundaries to make enormous profits at the expense of the most vulnerable victims but also to guarantee that any such powers are used exclusively against such perpetrators worthy of such treatment. These are all individually matters requiring careful definition. The alternative nature of the concept must, however, extend also to a broader re-examination of what European criminal justice should target. The challenges are philosophical and fundamental as well as specific and intricate. Above all they are, however, a decisive opportunity for the European tradition of critical and alternative thinking to have significant impact.

1  His speech will be made available via the Institute website (www.birmingham.ac.uk/research/activity/ija/index.aspx) in the coming weeks.
2 Conducted by an international team of researchers and headed by the author whilst working at the Max Planck Institute for Foreign and International Criminal Law in Freiburg and co-sponsored by the Hercule Programme of the European Commission. A selection of key preliminary results can be found in Wade (2013) A European Public Prosecutor: Potential and Pitfalls, Crime, Law and Social Change, in press.

Dr., is Senior Lecturer and Director of the Institute of Judicial Administration, University of Birmingham Law School (Birmingham, U.K.).
Dr Wade’s activities currently focus on European criminal law and criminal justice as well as prosecutors and terrorism. She has provided the expert advice to the German Federal and State Committee of Data Protection Commissioners, the Rule of Law Delegation of the OSCE Spillover Mission to Skopje, the international prosecutor’s office of the ECCC, the UNDP’s POGAR conference, the President of the German Prosecutor-Generals’ working group and the Dutch Ministry of Justice. She also works as a member of the legal expert advisory board of the NGO Fair Trials International and a criminal justice expert for the European Commission. Dr Wade was educated in Norway, the UK and Germany before she began working for the Department of Criminology of the University of Göttingen and then the Max Planck Institute for Foreign and International Criminal Law both in Germany. She joined the University of Birmingham in 2011.