The Area of Freedom, Security and Justice in the Enlarged Europe (One Europe or Several?)

The Area of Freedom, Security and Justice in the Enlarged Europe Edited by

Karen Henderson

One Europe or Several? Series Editor: Helen Wallace The One Europe or Several? series examines contemporary processes of political, security, economic, social and cultural change across the European continent, as well as issues of convergence/divergence and prospects for integration and fragmentation. Many of the books in the series are cross-country comparisons; others evaluate the European institutions, in particular the European Union and NATO, in the context of eastern enlargement. Titles include: Sarah Birch ELECTORAL SYSTEMS AND POLITICAL TRANSFORMATION IN POSTCOMMUNIST EUROPE Sarah Birch, Frances Millard, Marina Popescu and Kieran Williams EMBODYING DEMOCRACY Electoral System Design in Post-Communist Europe Andrew Cottey, Timothy Edmunds and Anthony Forster (editors) DEMOCRATIC CONTROL OF THE MILITARY IN POSTCOMMUNIST EUROPE Guarding the Guards Anthony Forster, Timothy Edmunds and Andrew Cottey (editors) THE CHALLENGE OF MILITARY REFORM IN POSTCOMMUNIST EUROPE Building Professional Armed Forces Anthony Forster, Timothy Edmunds and Andrew Cottey (editors) SOLDIERS AND SOCIETIES IN POSTCOMMUNIST EUROPE Legitimacy and Change Karen Henderson (editor) THE AREA OF FREEDOM, SECURITY AND JUSTICE IN THE ENLARGED EUROPE James Hughes, Gwendolyn Sasse and Claire Gordon EUROPEANIZATION AND REGIONALIZATION IN THE EU’S ENLARGEMENT TO CENTRAL AND EASTERN EUROPE The Myth of Conditionality Andrew Jordan THE EUROPEANIZATION OF BRITISH ENVIRONMENTAL POLICY A Departmental Perspective Christopher Lord A DEMOCRACTIC AUDIT OF THE EUROPEAN UNION

Valsamis Mitsilegas, Jörg Monar and Wyn Rees THE EUROPEAN UNION AND INTERNAL SECURITY Guardian of the People? Helen Wallace (editor) INTERLOCKING DIMENSIONS OF EUROPEAN INTEGRATION

One Europe or Several? Series Standing Order ISBN 0–333–94630–8 (outside North America only) You can receive future titles in this series as they are published by placing a standing order. Please contact your bookseller or, in case of difficulty, write to us at the address below with your name and address, the title of the series and the ISBN quoted above. Customer Services Department, Macmillan Distribution Ltd, Houndmills, Basingstoke, Hampshire RG21 6XS, England

The Area of Freedom, Security and Justice in the Enlarged Europe Edited by

Karen Henderson University of Leicester

Editorial matter and selection © Karen Henderson 2005 Chapters 1–8 © Palgrave Macmillan Ltd 2005 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1T 4LP. Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The authors have asserted their rights to be identified as the authors of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2005 by PALGRAVE MACMILLAN Houndmills, Basingstoke, Hampshire RG21 6XS and 175 Fifth Avenue, New York, N.Y. 10010 Companies and representatives throughout the world. PALGRAVE MACMILLAN is the global academic imprint of the Palgrave Macmillan division of St. Martin’s Press, LLC and of Palgrave Macmillan Ltd. Macmillan® is a registered trademark in the United States, United Kingdom and other countries. Palgrave is a registered trademark in the European Union and other countries. ISBN 1–4039–3522–X This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data The area of freedom, security, and justice in the enlarged Europe / edited by Karen Henderson. p. cm. Includes bibliographical references and index. ISBN 1–4039–3522–X (cloth) 1. Internal security – European Union countries. 2. Illegal aliens – European Union countries. 3. Illegal aliens – Europe, Eastern. 4. Organized crime – European Union countries. 5. Organized crime – Europe, Eastern. 6. Crime prevention – European Union countries. 7. European Union countries – Emigration and immigration. 8. European Union. I. Henderson, Karen, 1954– HV8194.A2A74 2005 364.94—dc22 10 9 8 7 6 5 4 3 2 1 14 13 12 11 10 09 08 07 06 05 Printed and bound in Great Britain by Antony Rowe Ltd, Chippenham and Eastbourne.

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Contents List of Tables

viii

Notes on the Contributors

ix

List of Abbreviations

xi

Introduction

xii

1 Perceptions of Internal Security Issues in the New Member States Karen Henderson Changing agendas The securitization of crime and immigration threats, 1990–95 Preparing for EU accession, 1996–2002 Joining the new Europe, 2003– 2 Organized Crime in the New EU States of East Central Europe Miroslav Nozina Introduction The phenomenon of organized crime Responses to organized crime Conclusions 3 Extending the Area of Freedom, Security and Justice: the Crucial Case of Poland Iwona Pio´rko and Monika Sie Dhian Ho Introduction The special character of JHA in the context of EU enlargement The special case of Polish accession in the field of JHA Opportunities for Poland Challenges for Poland Conclusion

v

1 1 4 7 16 25 25 26 35 43 48 48 49 51 52 56 59

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Contents

4 The Implications of Schengen Visa Policy for the Visegrad States: the Case of Slovakia Alexander Duleba Introduction The impact of EU accession on Slovakia’s border regime with Ukraine Impacts of the visa regime Summary of main findings 5 Justice and Home Affairs and the EU’s New Neighbours: Governance Beyond Membership? Sandra Lavenex Introduction Beyond the eastern border: external effects of EU enlargement The foreign policy dimension of JHA JHA in relations with the new eastern neighbours The ‘Wider Europe’ initiative: towards a new neighbourhood policy? Conclusion: external governance in JHA 6 A New ‘Area of Freedom, Security and Justice’ for the Enlarged EU? The Results of the European Convention Jörg Monar Introduction The new legal framework The Charter of Fundamental Rights as part of the legal framework The revised policy-making objectives Division of powers and subsidiarity Solidarity as a new integration principle The reforms of the decision-making system Implementation Democratic and judicial control Overall assessment Prospects after the failure of the first IGC round in December 2003

65 65 66 72 84 89 89 90 93 96 102 104

110 110 112 114 116 121 123 124 127 128 130 132

Contents vii

7 EU Institutional Reform and New Member States in the Area of Freedom, Security and Justice Vladimír Bileík Introduction The role of the CEECs and the context of the Convention Members-to-be and justice and home affairs The CEECs and the fate of the draft constitution 8 Conclusion: The Politics of Freedom, Security and Justice in the Enlarging EU Heather Grabbe Introduction The changing nature of borders and the privatization of fear Border dilemmas for Central and Eastern Europe The impact of 11 September 2001 and its aftermath on Europe Will the EU continue to liberalize the movement of people? The future politics of internal security

135 135 136 138 142 149 149 150 151 154 157 159

Bibliography

162

Index

170

List of Tables 1.1 Time taken to negotiate Chapter 24 (justice and home affairs) in the EU accession negotiations 4.1 Number of people legally crossing the Slovak–Ukrainian border, 1998–2002 4.2 Transport movement through Slovak–Ukrainian border crossings, 1998–2002 4.3 Slovakia’s trade with Ukraine, 1993–2002 (in $ million, current prices) 4.4 Foreign visitors who used tourist accommodation in Slovakia by country of origin, 1995–2002 4.5 Customs offences committed by legal business entities and individuals 4.6 Number of illegal migrants detained by the Slovak border police at the Slovak–Ukrainian state border, 1993–2002 4.7 Pressure of illegal migrants on the borders of the Slovak Republic with neighbouring countries, 1993–2002 4.8 Pressure of illegal migrants on the Slovak Republic’s state borders by direction, 1993–2002

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17 73 75 75 77 78

79 80 81

Notes on the Contributors Vladimír Bilcˇík has worked as an analyst at the Research Centre of the Slovak Foreign Policy Association (RC SFPA) since 1999. He holds an M.Phil. in European Politics from the University of Oxford and has published both in Slovakia and other countries on issues of EU enlargement. From February 2002 to July 2003 he advised Ján Figel’, member of the Convention on the Future of Europe. Alexander Duleba is director of the Research Centre of the Slovak Foreign Policy Association and the head of the Centre’s Eastern Europe research programme. He is author, editor or co-editor of 22 books and 75 studies in the field of international relations and East European studies. His main works include Eastern Policy of the Enlarged European Union: A Visegrad Perspective (co-editor, 2003); Ukraine and Slovakia (2002); Russia at the End of Yeltsin’s Era (1999); and Transcarpathia (1995). Heather Grabbe is Deputy Director of the Centre for European Reform, an independent think-tank based in London, and an Associate Fellow of the European Institute, London School of Economics. She has worked extensively on EU enlargement and its implications, as well as on other European issues and questions of conditionality. Her publications include The Constellations of Europe: How Enlargement will Transform the EU (2004); Profiting from EU Enlargement (2001) and Enlarging the EU Eastwards (with Kirsty Hughes, 1998). She was previously Research Fellow at the Royal Institute of International Affairs and has been a visiting fellow at the European University Institute (Florence), the European Union Institute for Security Studies (Paris) and the Centre for International Relations (Warsaw). Karen Henderson is Senior Lecturer in Politics at the University of Leicester. Her research has focused on EU eastern enlargement and the domestic politics of Slovakia and the Czech Republic. Her publications include Slovakia: The Escape from Invisibility (2002), Back to Europe: Central and Eastern Europe and the European Union (editor, 1999) and Post-Communist Politics (with Neil Robinson, 1997). ix

x

Notes on the Contributors

Sandra Lavenex is Assistant Professor of European Studies and International Relations at the University of Bern in Switzerland. She obtained her Ph.D. from the European University Institute in Florence in 1999 for a study on the Europeanization of refugee policies. Her main areas or research are EU asylum and immigration policies and EU external relations with the ‘near abroad’. Jörg Monar is Professor in Contemporary European Studies and Co-Director of the Sussex European Institute, University of Sussex. He was previously Professor of Politics at the University of Leicester and before that Director of the Institut für Europäische Politik. He is also a professor and member of the Academic Council at the College of Europe, has worked since 1999 as a specialist adviser on EU justice and home affairs issues for the House of Lords EU Committee and is co-editor of the European Foreign Affairs Review. Miroslav Noz ˇina is a research fellow at the Institute of International Relations, Prague. His spheres of interest encompass security problems connected to international criminal activities and drug-related issues. He is author of The World of Drugs in the Czech Lands (1997) and International Organised Crime in the Czech Republic (2003). Iwona Piórko is a lecturer in Justice and Home Affairs at the Collegium Civitas, Warsaw, and a Ph.D. candidate at the Sussex European Institute, University of Sussex (UK). She graduated from the College of Europe Natolin, where she later worked as Academic Assistant in Politics and Administration. She is a member of the Centre for European Policy Studies academic network on JHA and Enlargement (Brussels). She also cooperates with the European Policy Centre (Brussels) and the Centre for International Relations (Warsaw). Monika Sie Dhian Ho is senior researcher at the Netherlands Scientific Council for Government Policy (WRR). She has been lecturer in Political Science and International Relations at the Erasmus University in Rotterdam and at Leiden University, and currently teaches a course on European Integration at the MPA of the Netherlands School of Public Administration in The Hague.

List of Abbreviations AFSJ CEEC CIS COREPER EC ECE EP EU EU-15 EU-25 FTD GUUAM JHA IGC NATO NDI NIS PCA QMV SIS TEC WG

area of freedom, security and justice Central and East European countries Commonwealth of Independent States Committee of Permanent Representatives (of member state governments to the European Council) European Community East Central Europe European Parliament European Union Pre-2004 EU member states EU member states after 2004 enlargement facilitated travel document Georgia, Ukraine, Uzbekistan, Azerbaijan, Moldova justice and home affairs Intergovernmental Conference North Atlantic Treaty Organization Northern Dimension Initiative newly independent states Partnership and Cooperation Agreement qualified majority voting Schengen Information System Treaty establishing the European Community working group

xi

Introduction This book looks at two of the profound changes that have altered the shape and form of the European Union over the last decade. On 1 May 2004, it enlarged for the fifth time since its foundation in 1957. This was not only the largest of the enlargement waves, but it has also been the most important symbolically and in practical terms since, a mere 15 years previously, eight of the ten new member states had been governed by communist regimes. Their accession to the EU marked the culmination of their ‘return to Europe’, and the reuniting of a continent that had been divided for more than 40 years up to 1989. It also represented a quite remarkable triumph of painstaking bureaucratic endeavour. With the help of waves of Commission officials, states whose legal and administrative capacity had been gravely weakened by four decades of communism accomplished the not inconsiderable task of harmonizing their legislation with the EU’s ever-growing acquis communautaire, at the same time as constructing a functioning market economy and consolidating their new democracies. However, the ‘Europe’ to which the accession states were returning was a European Union whose goals and functions had also expanded over recent years. The second profound change relates to an expansion in the policy areas in which the EU is involved. Public attention has tended to focus on the introduction of the euro and attempts at forging a common foreign and security policy, yet the construction of what was at first referred to as the EU’s ‘third pillar’ – the extension of EU competencies in the field of justice and home affairs – was arguably more likely to affect the everyday life of the ordinary citizen. This included issues such as border controls, asylum and immigration policy, as well as judicial cooperation and combating crime. As the 1990s progressed, these ‘internal security’ matters became increasingly prominent among international and domestic concerns. Despite the importance of both EU eastward enlargement and the expansion of the EU’s justice and home affairs agenda, there has so far been relatively little analysis of the relationship between these two new areas of EU activity. The aim of this book is to examine both xii

Introduction xiii

how the expansion of the EU has presented extra challenges and achievements in the field of internal security, and how the ‘third pillar’ has affected preparations for accession in the new member states. The two spheres have from the outset been very closely linked. It was in many ways the end of the cold war, which left Eastern Europe free to seek closer ties to the EU, that also shifted the focus of West European states from the traditional emphasis on external, military security to a greater preoccupation with internal security. This occurred not merely because of the reduction of the ‘Soviet threat’ under Gorbachev, but also because the sudden opening of borders in the countries previously behind the ‘iron curtain’ left them vulnerable to penetration by organized crime and illegal immigration. The states of Central and Eastern Europe were thus initially viewed as threats which endangered the internal security of the European Union. At the same time, it was becoming increasingly clear that justice and home affairs issues could no longer be handled effectively by the governments of individual states. In a world of open borders, transnational cooperation is vitally important. The events of 11 September 2001 brought home how vulnerable the citizens of even the most powerful state can be, and gave a further impetus to international cooperation in creating internal security. The EU response to the changed situation in Europe was in essence constructive and positive. Given the desire of the post-communist states of Central and Eastern Europe to become members of the EU, it attempted to incorporate them into a unified ‘area of freedom, security and justice’, rather than bolstering its defences against them. This confronted the EU with the prospect that most of its vulnerable external land border would be pushed east, to be guarded by erstwhile Warsaw Pact states such as Poland, while the under-equipped police forces and courts of its prospective new members in Central and Eastern Europe required urgent assistance in preparing themselves for ever-deepening cooperation in judicial affairs. The new security agenda posed demanding and largely unexpected challenges for the states striving to ‘return to Europe’. In the mid-1990s, their applications to join the EU had been conceived of in largely economic terms. The focus of attention was on the ‘first pillar’: the European Community as it had existed at the beginning of the 1990s. Yet the Treaty of Maastricht, agreed in December 1991, had added a ‘second pillar’ comprising the common foreign and security

xiv Introduction

policy, as well as the ‘third pillar’ of justice and home affairs. Article K of Title VI of the Treaty on European Union listed nine items which member states regarded as matters of ‘common interest’: asylum policy, rules on crossing external borders, immigration policy, combating drug addiction, combating international fraud, civil judicial cooperation, criminal judicial cooperation, customs cooperation and police cooperation. These were all areas that had previously been the exclusive preserve of national governments, and they remained the subject of intergovernmental decision making. Virtually no attention was paid to this change in the ‘other’ Europe. While the new democratic governments in post-communist Europe were all floundering in the face of the practical problems posed by the sudden and unexpected encroachment of crime into their citizens’ everyday lives at the time when they submitted their applications to join the EU in the mid-1990s, the two policy fields did not appear to be linked. This situation changed markedly in 1997. The European Commission issued its avis – opinions – on the membership applications from ten Central and East European states in July 1997, and recommended beginning accession negotiations with some of them. However, in June 1997 the EU’s Intergovernmental Conference had concluded with the draft Treaty of Amsterdam, which for the first time set, as one of the Union’s objectives, the development of an ‘area of freedom, security and justice’ (AFSJ), in which ‘the free movement of persons is assured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime’. The EU was hence encroaching further into fields that had previously been the exclusive preserve of member states’ governments. At the same time, the Treaty incorporated part of the ‘third pillar’ – immigration and asylum – into the first, Community, pillar. Moreover, a protocol integrated the Schengen acquis, including the abolition of checks at common borders, into the framework of the European Union, with the concomitant demand that all candidate states must accept it in full. This precluded the possibility of any new member states opting out of the Schengen area as Britain and Ireland had done. The applicant states were thus confronted with a number of complex tasks that they had not been expecting, and their justice and interior ministries were drawn into the EU enlargement process. These were already undergoing a fundamental transformation as part

Introduction xv

of the post-communist democratization process, and now found themselves forced to adapt to EU standards, which – due to the dominant position of member state governments rather than the European Commission in justice and home affairs issues – were often somewhat elusive. Moreover, justice and home affairs was an area where the member states could not afford to be lax about the demands placed on the governments of the candidate states since crime, immigration and asylum are highly sensitive for the media and electorates. In the light of this, the progress made by the states of Central and Eastern Europe in preparing for membership of the AFSJ was remarkable. As enlargement negotiations progressed, the idea that the west and east of Europe belonged to a single area in which there should be both freedom of movement and internal security took firm root, and at the same time, the centrality of the AFSJ to the entire European project also increased even further. When representatives of old and new member states gathered in a convention on the future of Europe, the draft EU constitution they drew up gave the AFSJ pride of place. Whereas the Treaty of Amsterdam had ranked it below economic and social progress and a common foreign and security policy in its list of objectives, only peace and the well-being of its peoples took precedence in the proposed constitution. * * * This book follows through some of the many complex issues that had to be tackled in order to integrate the new member states into the AFSJ as well as presenting some of the dilemmas that remain. The interplay of domestic and international concerns throughout Europe has produced a sometimes fascinating clash of agendas, and one that has affected both the implementation of the EU’s justice and home affairs agenda and the EU enlargement process itself. The initial focus is on how the new member states have adapted to the EU’s internal security agenda, while later chapters examine both recent developments in the AFSJ and the situation of those East European states that have little chance of joining in the foreseeable future. The topic is approached from a number of differing, but complementary, angles, including case studies from some of the new member states in East Central Europe. Individual chapters are written by specialists who have conducted research on a range of justice and home affairs issues.

xvi Introduction

In Chapter 1, Karen Henderson looks at internal security issues from the perspective of candidate states. Three distinct periods in post-communist development are highlighted, with particular reference to the Czech Republic and Slovakia. In the first half of the 1990s, threat perceptions in Central and Eastern Europe changed markedly, and the public’s ‘moral panic’ about both the increase of domestic crime, and the influx of foreign migrants and organized crime, forced governments to reassess priorities in policing and border issues. In the second half of the 1990s, the more technical challenges of the EU accession process came to the fore, and the restructuring of the work of the justice and interior ministries was primarily a response to external demands. However, despite earlier predictions that justice and home affairs would be one of the most challenging areas in the accession negotiations, by the early years of the new century, there had been some remarkable achievements in harmonizing policies in countries that had had once belonged to a different ‘bloc’. In Chapter 2, Miroslav Nozina examines the challenges posed by organized crime in the new member states. Looking first at the peculiarities of the ‘socialist’ criminal underworld that existed until 1989, it then maps the dramatic rise in crime in the early post-communist period, and the fundamental changes in the nature of criminal activity that took place after the opening of borders. The restructuring of organized crime began quickly as local underworlds met criminal groupings from elsewhere in Europe and the rest of the world, and exploited the new opportunities offered by the privatization process and the prevalence of corruption. However, the reconstruction of legal systems also gained pace by the second half of the 1990s, and the Visegrad Four states in East Central Europe provide illustrations of how both the security forces and the judiciary adapted to meet the enormous domestic challenges, as well as the need for more intensive international cooperation and harmonization as the EU accession process developed. In Chapter 3, Iwona Piórko and Monika Sie Dhian Ho weigh up the costs and benefits of EU accession in the field of justice and home affairs by taking Poland as a case study. Poland is exceptionally important as it is the largest of the new member states, and will have the second longest external land border guarded by a single member state. The chapter looks first at the particular problems caused by

Introduction xvii

Poland’s geographic position and the changes in migration patterns after 1989. It then analyses the opportunities presented to Poland by EU accession, such as the strengthening of institutions, improvements in training and resources, improved inter-institutional cooperation and strategic policy making, and the advantages of full integration into the AFSJ. It then balances these against the costs incurred in terms of financial, socio-economic and political challenges, including the disruption of links with eastern neighbours. It concludes by discussing the various ways in which the costs of EU accession can be alleviated. In Chapter 4, Alexander Duleba studies the implications of Schengen visa policy by examining the case of Slovakia, which was the first of the Visegrad states to respond to EU demands by introducing a visa regime with an immediate neighbour. It illustrates the historical complexities typical of the region, since the Slovak–Ukrainian border divided territories that had, until 1945, long been together in one (though not always the same) state. After looking at the political background and diplomatic problems caused by the controversial change in visa policy, the chapter analyses original data about what actually happened after the border regime was altered. Statistics on the legal movement of people, volumes of trade and tourism, illegal migration, labour migration and criminal activity show that results did not always match up to fears and expectations. While economic disruption was less than predicted, the bilateral visa regime did little to increase the internal security of the AFSJ. The improved border protection measures implemented with EU assistance in preparation for the Slovak–Ukrainian border becoming a Schengen external border brought far more notable results. In Chapter 5, Sandra Lavenex examines justice and home affairs and the EU’s new neighbours, with a focus on Russia, Ukraine, Moldova and Belarus, which pose ‘soft’ security threats to the new EU both as countries of origin and transit countries for illegal migrants and organized crime. It examines ‘governance beyond membership’: how the EU seeks to bind non-member states to the policies of the Union when it lacks the leverage of the promise of membership. After looking at EU policies from the perspective of the governments of the new neighbours, it analyses the foreign policy dimension of justice and home affairs, and the development of new forms of cooperation with the states involved that aim to protect the

xviii Introduction

AFSJ. It considers whether the ‘Wider Europe’ initiative represents a new neighbourhood policy that might mitigate the negative consequences of EU enlargement for the states excluded, or if, as a tool of external governance, it is a substitute for the leverage that could be provided by the promise of membership. In Chapter 6, Jörg Monar questions whether the Convention on the Future of Europe, and the draft constitution that it agreed, will produce a new AFSJ for the enlarged EU. After some initial observations on the importance, and the sensitivity, of the area for all member states, it looks at the new legal framework established in the draft constitution, together with its failure clearly to define the objectives of the AFSJ. It examines the importance of the incorporation of the Charter of Fundamental Rights, as well as the problems that may arise from the detailed yet at times contradictory policy-making objectives established. This is followed by more detailed analysis of provisions in individual policy-making areas (border checks, asylum and immigration and judicial cooperation in civil and criminal matters); the division of powers suggested; reforms of the decision-making system; and democratic and judicial control. Finally, it assesses the relevance of the draft constitution to the enlarged EU, and whether the compromises involved in its formation undermine its importance for determining the future of the area of freedom, security and justice. In Chapter 7, Vladimír Bileík examines the contribution made by the new member states to the discussion of justice and home affairs issues in the Convention on the Future of Europe. This forum provided the first opportunity for representatives of the governments and parliaments of the accession states, as equal partners of those from current member states and the EU institutions, to play a positive role in decision making, rather than being recipients of EU policy. The work and the conclusions of the Convention’s Working Group ‘Freedom, Security and Justice’ are analysed with a particular focus on contributions by representatives of candidate countries. Questions are raised about the extent to which they were equipped for the task of policy formulation, and able to represent coherent and authoritative policy stances on justice and home affairs issues within their own states. Looking forward, the chapter discusses likely attitudes to future challenges in developing the AFSJ on the part of the new member states. In Chapter 8, Heather Grabbe draws together the book’s main arguments and summarizes the internal security challenges facing the

Introduction xix

enlarged Europe, and the tensions it will experience in its attempts to complete the AFSJ. It highlights in particular the salience of borderrelated issues and the dilemmas faced by governments in the new member states, for whom security concerns must be matched against their citizens’ preoccupation with the right to freedom of travel and foreign policy demands in their relations with eastern neighbours. It also examines the Union’s responses to 11 September 2001, how it has affected both threat perceptions and common policy making, and the debates on internal security that continue in both the old member states and the new members of Central and Eastern Europe. * * * The book is the result of cooperation developed in the course of the research project ‘Towards a New European Governance of “Internal Security”: Challenges, Objectives and Structures’ conducted at the University of Leicester under the leadership of Professor Jörg Monar from 1999 to 2002. Earlier findings from the project, which was funded by the Economic and Social Research Council’s ‘One Europe or Several?’ Research Programme (grant L213252011), were published in The European Union and Internal Security: Guardian of the People by Valsamis Mitsilegas, Jörg Monar and Wyn Rees, which appeared in this series in 2003. The current volume expands the project’s research on illegal immigration and organized crime with reference to the EU accession states, and is the work of an international team of authors brought together at its final conference on ‘EU Governance and the Challenge of Internal Security’ held in Leicester in September 2002. Their original contributions have been reformulated and revised to cover the period up until EU eastward enlargement in May 2004, and complemented by the addition of two further chapters in order to provide comprehensive up-to-date coverage of the crucial issues linked to the AFSJ in the new Europe. Thanks are given to everyone who contributed ideas and information to the project, most particularly to the many officials of EU institutions and interior ministries in the accession states who gave much of their valuable time to assist the authors in the research. Karen Henderson Leicester

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1 Perceptions of Internal Security Issues in the New Member States Karen Henderson

Changing agendas Preparing the candidate states for joining the area of freedom, security and justice (AFSJ) was one of the most daunting challenges, and the greatest achievements, of EU eastern enlargement. At the beginning of the 1990s, post-communist states inherited police forces and courts that were not trusted by their own people, let alone the governments of the European Union’s member states; borders designed to protect against subversion from the West rather than organized crime and illegal immigration from the East; and a postwar history of being the source rather than the destination of asylum seekers. However, as the EU’s justice and home affairs agenda developed at an unexpectedly rapid pace from the early 1990s onwards, and adopting the Schengen acquis of a border-free Europe was made a condition of EU membership in 1997, the candidate states were faced with the task of achieving (often rather elusive) Western standards in one of the most sensitive, and often most secretive, areas of state activity. It is surprising, therefore, that more attention has not been paid to the complex and painstaking efforts, and very rapid developments, that took place in the field of internal security in the Central and East European countries (CEECs). While much publicity has surrounded the building of democratic political institutions, the creation of market economies, and the military volte-face that enabled them to join NATO, the changing agendas of their interior and justice ministries have been the subject of less analysis.1 At the same time, few questions have been asked about the underlying problems of incorporating the 1

2

The AFSJ in the Enlarged Europe

new EU members into the AFSJ. Whose freedom, and whose security, was the AFSJ designed to protect? The creation of a single AFSJ presupposes common notions of internal security, yet at times in the accession process, it appeared that harmonization was designed primarily to ensure that the CEECs spent time, effort and money converting themselves into an effective buffer zone protecting the security interests of Western Europe. This chapter aims, therefore, to look at internal security issues from the perspective of the post-communist candidate countries. In general, there was more similarity in the way security organs worked at the beginning of the 1990s within the former Soviet bloc states than the existing EU. The two examples in particular that will be used in this chapter are the Czech Republic and Slovakia, which, having been in the same state until the end of 1992, began the transition to democracy with identical legal and security systems. They therefore offer a good illustration of the differing priorities and problems that could develop thereafter. The Czech Republic had a population twice the size of Slovakia’s, and was better equipped at the level of ‘software’ to respond to new challenges. For example, it inherited the research office at the Federal Ministry of Justice and Czechoslovakia’s major criminology journal,2 while literature on internal security was harder to find in Slovak. The Slovak economy was also slightly weaker, and less diverse and hence more vulnerable to post-communist transition, than the Czech one, and Slovakia had a more eastern and hence less advantageous geographic position than the Czech Republic. Slovaks also had less experience at running a state than the Czechs, and in a crucial period in the mid-1990s fell behind politically, making little progress in transforming the police force and justice and interior ministries. They tended if anything to regress in combating clientelism and corruption and establishing a state based on the rule of law. Nevertheless, in both countries it is possible to identify three distinct periods in the development of the internal security agenda since the fall of communism in 1989. In the first period, from 1990 until the mid-1990s, policy in the CEECs responded primarily to problems in the domestic transformation process. In many cases, governments were forced to act by the pressure of public opinion, as citizens found their everyday lives disrupted by previously non-existent threats to the conduct of their everyday lives, while chronically underresourced

Perceptions of Internal Security 3

state organs, such as police forces and courts, found themselves overwhelmed and outmanoeuvred by organized crime whose perpetrators enjoyed superiority in material resources, international contacts and the capacity to adapt flexibly and informally to any opportunity that presented itself. In the second period, in the latter half of the 1990s and the first years of the new millennium, CEEC governments were led primarily by the exigencies of EU accession, and the technical requirements of the European Commission. Although the specific threats posed by crime and illegal immigration were still prone to rapid change, the initial shock caused by the opening of previously closed, and highly regulated, societies to the outside world subsided. Governments responded primarily to an externally imposed rather than a domestic agenda, and were stretched in particular by difficulties in determining exactly what was required of them in areas where EU competencies were expanding rapidly, and where intergovernmentalism still predominated in decision making. The third, and contemporary, period began at about the point when the Convention on the Future of Europe for the first time gave then candidate and now new member states a voice in determining EU policy on the shape and scope of the AFSJ, as well as all other aspects of the EU’s constitution. They became a subject rather than an object of EU policy making, and although they were initially uncertain and peripheral actors in decision making, other important shifts in perceptions of the AFSJ were taking place. The fifteen existing and ten acceding member states were genuinely viewed as belonging to a single space for guaranteeing the internal security of all. More crucially, however, a genuine process of convergence in internal security interests had also been taking place. The threats with which the CEECs were confronted, and therefore also the possible solutions to their problems, were gradually becoming more similar to those in the old member states. Arguably, the success of the AFSJ depends in a large part on the extent to which continuing discrepancies in domestic internal security agendas can be effectively incorporated into a constitutional framework that is functional for all member states. By tracing through developments in the different periods in which the CEECs’ internal security agendas were formed, this chapter aims to provide the background for understanding the more specific issues discussed in the rest of the book.

4

The AFSJ in the Enlarged Europe

The securitization of crime and immigration threats, 1990–95 For European structures designed to counter threats to internal security, it is essential that they should address real threats if they are to function effectively. Since the collapse of Soviet communism, attention has been paid to changes in Western concerns, whereby the military threat from the East is replaced by an internal security agenda of combating organized crime, illegal immigration and, increasingly, terrorism. There has been less focus, however, on the constellation of security fears experienced in the former communist bloc. The Czech Republic and Slovakia are interesting case studies in this respect, because although they spent the first three years of the postcommunist transition in the same state, they later diverged, and this applied to perceptions of security threats as well as to issues such as economic and democratic reform that are more commonly mentioned. Using Buzan, Wæver and de Wilde’s distinction that a public issue becomes securitized, rather than merely politicized, when it is presented and widely accepted as an existential threat requiring emergency measures,3 it can be seen that different issues became securitized in each of the new states. What was common to both was that, in contrast to Poland and the Baltic states, the military threats from the former Soviet Union were not a major concern, and while they applied for NATO membership, this was viewed as a desirable organization of which to be a member, rather than a vital necessity for securing the country’s survival. Support for EU membership remained higher than support for joining NATO.4 Generally, demilitarization was promoted, which later assisted in achieving harmonization with the EU, particularly where interior ministry functions (for example, border control) were concerned. Economic threats were considered by the public to be a more crucial danger to their general well-being. Many people felt existentially threatened by sharp changes in their material circumstances, and anxieties were particularly acute in Slovakia, where the unemployment rate rose sharply from 1990 onwards. Questions of internal security interacted with the effects of economic reforms. An alarming rise in crime was a common problem of post-communist states in the early 1990s. This is reflected both in official statistics (see Chapter 3) and in public opinion polls that show crime featuring near the top

Perceptions of Internal Security 5

of respondents’ main worries.5 In a more urban society such as the Czech Republic, and to a lesser extent Slovakia, people were affected on a day-to-day level by frequent burglaries, and blocks of flats had entryphone systems installed rather than permitting open access to flat doors; there were break-ins at the weekend cottages or chalets beloved by the residents of small high-rise communist-era city flats, which were usually in more remote areas, often sheltered in woodland; and car theft became common, affecting in particular the more expensive cars to which some citizens now had access. In early 1990s Prague, ‘black sheriffs’ – private security guards – became a common sight outside private currency exchange offices, whose owners no longer felt they could rely on the normal police for security; accounts of Russian mafia gangs demanding protection money from shopkeepers spread widely; and Vietnamese street traders selling cigarettes and other goods became a normal sight. At the same time, the number of foreigners living in the capital had increased visibly. These phenomena were present in Slovakia as well, though they were less conspicuous as it had no large cosmopolitan city to compare with Prague, and overall numbers were far lower. There were already nearly 50,000 foreigners living in the Czech Republic by the end of 1992, and 231,608 a decade later at the end of 2002,6 whereas in Slovakia there were still only 29,505 legally resident foreigners in 2002, compared to 6743 in 1993.7 Czech perceptions of organized crime and immigration as an alien intrusion from the East (that is, the former Soviet Union) was even, in the first half of the 1990s, not altogether unlike Western threat perceptions in the internal security realm.8 Interestingly, however, whereas governments and politicians are often the ‘securitizing actors’ that present a threat as existential and therefore requiring special measures,9 in the Czech Republic it was rather diffuse public opinion that initially identified growing crime as a major problem and forced the government to take the issue seriously. This ran counter to the political project of Czech reform, which believed, in the economic sphere, that regulation was unnecessary since the market would suffice. The desire of economic reformers to permit maximum openness of the market was matched by the liberalism of politicians who were preoccupied by issues of personal freedom, which also militated against effective state intervention in the internal security sphere.10 The backlash against the communist period was

6

The AFSJ in the Enlarged Europe

very intense since in the relatively modern Czech lands, the imposition of the Soviet brand of socialism had impeded development more severely than anywhere else in the communist world. Slovak threat perceptions were different. Here, the societal sector was more prone to securitization. Slovak nationhood and the new Slovak statehood established at the end of 1992 saw itself endangered less by a military threat from the East, and more by immediate neighbours such as the Czechs, and most particularly the Hungarians,11 who were present as a 10 per cent minority in the Slovak Republic. Some people also feared that the West would overrun them culturally and economically (both notions embraced in concept of ‘McDonaldization’). This indeed was also the case in the Czech Republic, but early governments in the independent Slovakia combined this with fear of Czechs and Hungarians in an attempt to securitize the foreign threat to the young Slovak state, and simultaneously to promote both indigenous domination of the privatization process and perpetuation of their own rule as synonymous with the common good of the state. This discourse was not ultimately successful, and led in 1998 to a change of government, with an attendant improvement in Slovakia’s chances of European integration. The Western concept of an internal security threat from the East was thus less applicable in Slovakia than the Czech Republic. In the mid-1990s, the Slovak government prided itself on good contacts with Russia, and sometimes viewed these as a possible substitute for integration with Western Europe (for which it was frequently criticized by the then opposition parties in Slovakia).12 Consequently, there was less of a sense that foreign organized crime was an external threat to the state’s internal security: in the polarized Slovak political scene of the early and mid-1990s, many citizens perceived that threats from the East were interwoven with corruption in the government itself. There were consequently marked differences in Czech and Slovak threat perceptions in the early and mid-1990s. Neither perceived the problems to relate to conventional military threats. However, while the Czechs perceived threats to internal security as being alien and coming from the East, with government liberalism impeding effective counter-measures, in Slovakia, the major battle was about the nature of their state: the government camp viewed the young independent Slovak state as under threat, while the opposition viewed the government itself, with murky links to the East, to be the primary

Perceptions of Internal Security 7

danger.13 What was common to both was an initial ‘moral panic’ over the rise in crime and the lack of security for citizens. Yet this abated between 1993 and 1995,14 and worries about crime merged with the general residual uncertainty of the immediate post-communist period.

Preparing for EU accession, 1996–2002 In the second half of the 1990s, the reform agenda shifted from a domestic to an international focus. The major shock of postcommunist transition subsided. Crime rates ceased rising dramatically, some of the worst economic turmoil was over and gross domestic product began to rise, and political systems began to show signs of democratic consolidation. There were still some marked differences, though. For example, Slovakia, while appearing to have reasonable macroeconomic results, was lagging well behind the Czech Republic in structural economic reforms, and the political situation showed an instability that eventually led in 1997 to its exclusion from the first group of post-communist states to start negotiating EU accession.15 The increasing prominence of the EU’s justice and home affairs agenda was highlighted by the draft Treaty of Amsterdam agreed in June 1997, and within six months of the end of the Intergovernmental Conference, the Luxembourg European Council agreed to start accession negotiations with a ‘first group’ of Cyprus, the Czech Republic, Estonia, Hungary, Poland and Slovenia. A further ‘second group’ of five post-communist states – Bulgaria, Latvia, Lithuania, Romania and Slovakia – was included in the accession process, and the screening of their legislation to check for compatibility with the EU acquis began. However, detailed negotiations were delayed because Slovakia had not yet fulfilled the political criteria, and it was questionable whether the others could fulfil the EU’s economic criteria even in the medium term.16 From here on, the EU became a force driving change in the justice and home affairs field. Although interior and justice ministries already had international contacts through organizations such as the United Nations, and most significantly the Council of Europe, the EU had a coercive power that others lacked: it could prevent the candidate states joining, with all the economic consequences this entailed for them, until their standards of internal security were approved. Of the 31 chapters of the accession negotiations, Chapter 24 was

8

The AFSJ in the Enlarged Europe

about justice and home affairs, and until it was closed, accession could not take place. Chapter 24 confronted the candidate states with challenges for both external and internal reasons. First of all, the AFSJ had been conceived to protect the existing member states, and it addressed their problems. They were target states for illegal immigrants and asylum-seekers, and were therefore extremely concerned by the issue, while it was less pressing for candidate states, which tended merely to be transit countries. The steps they were expected to take therefore responded to an externally imposed agenda, which meant that they were, in the main, merely following instructions rather than developing their own solutions. Moreover, the acquis in the area of justice and home affairs, including the Schengen acquis, was at first not clearly defined,17 and systems of policing and judicial practice were highly divergent in different member states. The willingness of authorities in the member states to share information with representatives from the candidate states was also sometimes impaired by concerns about the extent of corruption in the east of the continent, and possible links with organized crime among law enforcement agency personnel themselves, which did little to inspire the good will of the latter.18 Second, the accession states had their own internal problems. There were generally negative public attitudes not merely towards the police, as repressive organs of the communist period, but also towards the interior ministry as a whole.19 Although interior ministries oversaw an enormous range of activities, including elections and local government, it was the coercive functions that first sprung to the minds of those who had lived under communism. These attitudes were partly mitigated by the moral panics of the early 1990s, when the rise in crime made citizens more accustomed to the idea that you might have to call the police, instead of hoping they would not decide to visit you. Also, perhaps ironically, the police oversaw many rather mundane administrative tasks well into the post-communist period, such as conducting driving tests and keeping registers of vehicles, which further encouraged the public to view them as people who controlled their everyday lives. While some of the negative communist-era images declined over the course of the 1990s, the perception that there was widespread corruption in both the police and the judiciary remained.20 On a more practical level, interior and

Perceptions of Internal Security 9

justice ministries suffered from problems of functional incompetence and technological obsolescence. At the start of the 1990s Czechs complained that the police could not chase criminals in a BMW while driving a Skoda, and at the end of the decade, while the police were somewhat better equipped, there were still complaints that judges did not even have computers in their offices. Chapter 24 of the accession negotiations was also challenging as it embraced a wide range of rather sensitive issues: immigration and border controls, including visas and asylum-seekers; combating organized crime, terrorism, fraud, corruption and drugs; and police, customs and judicial cooperation. It was predicted that it would be one of the most difficult chapters in the accession negotiations. When the Czech Republic finally presented its position paper on the justice and home affairs chapter in November 1999, only its position paper on agriculture was still outstanding. As with all chapters, the Slovak situation was slightly easier: by the time they submitted their position paper in December 2000, they had already seen the common positions adopted by the member states to the other Visegrad states’ position papers. Border controls were the most prominent of all the issues to be dealt with. The fact that new member states would form much of the external Schengen land border of the new EU caused a number of concerns in the accession states themselves. Poland feared the disruption of fragile border economies if hard borders cut off countries to the East with whom there was much petty trade (see Chapter 4), and Hungary was uncomfortable about separation from Hungarian minorities in all its neighbouring countries if its unloved 1920 Trianon borders were reinforced by becoming Schengen borders, rather than being quietly rubbed away as the Hungarian nation was peaceably reunited inside a border-free EU. Former Czechoslovakia had slightly different concerns. When it came to adapting border regimes to EU requirements, considerable difficulties were caused in the early stages of negotiations by simply not knowing where the external Schengen border would be. Slovakia – initially relegated to the ‘second group’ – was a particular problem in this regard: being a long thin country, it was perfectly shaped to cause maximum inconvenience to its northern and southern neighbours if it did not join the EU at the same time as they did. It had land borders of four different types: a new border, separating it from

10

The AFSJ in the Enlarged Europe

the Czech Republic, which had until recently been in the same state; a fairly short former ‘iron curtain’ (and now Schengen) border with EU member Austria; long borders with two other EU candidate states, Hungary and Poland; and a future Schengen border 97 kilometres long with Ukraine, which had no immediate hope of joining the EU. Slovakia’s political difficulties in the mid-1990s had led to its initial exclusion from the ‘first group’ of candidate states to which it naturally belonged in terms of economic development, infrastructure and geography, and to which it returned quickly after the 1998 parliamentary elections; but until 2001, it was not clear exactly how quickly it was reconverging. Slovakia’s uncertain status left the three neighbouring ‘first group’ states in a difficult situation for several years, since all were technically required by the EU to improve their border regimes with Slovakia, both to stem the increasing flow of illegal immigrants through Eastern Europe in the late 1990s and to prepare for the possibility of having an external Schengen border between themselves and Slovakia. This led to a strange form of shadow boxing, in which the three states paid lip service to EU demands and made some halfhearted efforts to secure their borders, while at the same time they were overstretched with more pressing changes that needed to be made in the justice and home affairs area, and never really believed that a Schengen border would ever exist between themselves and Slovakia. For Poland, its Slovak border was always a far lower priority than dealing with the borders with Belarus and Ukraine. The Slovak border was also hard to defend. It was partly located in mountainous territory, and had always been fairly porous: one lengthy border ridge had a ramblers’ path with both Polish and Slovak waymarks, and there had been fraternal socialist tourist gatherings of Poles, Czechs and Slovaks on mountain tops even in the communist period. Moreover, for the economically deprived districts of north-eastern Slovakia, the major preoccupation was opening as many new border crossings to Poland as possible, not making travel there more complicated. For the Hungarians, ever concerned with maintaining links to the large Hungarian community in southern Slovakia, the notion of having a Schengen border dividing them from Slovakia was politically repugnant, and they also had more problematic borders with Ukraine, Croatia and Serbia to contend with, all of which involved routes used by organized crime gangs smuggling illegal immigrants

Perceptions of Internal Security 11

and drugs. The Czechs were in resource terms better placed to build up their border with Slovakia, since their country was in the main surrounded by EU members Germany and Austria. However, the post-1992 Czech–Slovak border was porous in the extreme, and the local population expected to be able to go through it wherever and whenever they wanted. While the Czechs built impressive new buildings at the motorway border en route to Bratislava, the Slovaks found it hard even to feign an interest in strengthening the Czech– Slovak border, unofficially taking the attitude that if the Czechs were determined to join Schengen before they did, then that was their problem. The post-1998 Slovak government also soon grasped that what really mattered was the 97 kilometres of remote hilly ground that separated them from Ukraine. The final difficulty in this area was related to the timing of full integration into the Schengen system as opposed to EU membership. An illustration of this is the one transition period in the justice and home affairs area requested by the Czech Republic in its original position paper on Chapter 24, which related to its main Ruzynf Airport in Prague. Although the airport was relatively modern, a reconstruction programme necessary to make it comply with Schengen criteria could not be completed before 2005. During the period in which Chapter 24 was open, the probable date for EU accession slipped from 2002 to 2004, and it was never considered that there was a realistic chance that Schengen border checks between the Czech Republic and existing EU member states would be lifted before 2005. However, there was sensitivity about formally admitting this. When Slovakia began detailed accession negotiations two years after its Visegrad neighbours, there were even suggestions in neighbouring countries that Slovakia might join the Schengen zone before joining the EU to save the enormous costs of erecting a Schengen border around Slovakia for two years while waiting for it to join. There was an inherent contradiction between the coercive nature of the Treaty of Amsterdam’s protocol insisting that the candidate states accept the Schengen acquis before accession and the fact that the member states were not similarly obliged to lift Schengen border controls. The accession treaties themselves eventually spelt out which parts of the Schengen acquis had to be in place before the date of accession, and which could be implemented between 1 May 2004 and acceding to the Schengen zone.21 It was accepted that the new

12

The AFSJ in the Enlarged Europe

member states would require financial support in order to secure the EU’s new Schengen borders, and the Copenhagen European Council agreed a package providing the ten new member states with a total of 859 million euros over the 2004–06 period for the Schengen facility.22 The EU agenda on borders differed from that of the candidate states because it was less concerned with the practicalities of bilateral links between citizens of different states. The major preoccupation of the existing 15 member states was the penetration through Eastern Europe of illegal migrants and organized crime, which were heavily interrelated. The more difficult it became to cross from country to country in Eastern Europe, the more widespread became the purchase of the services of organized crime gangs by those hoping to reach a better life in the West.23 Although much had changed in the region in the early 1990s, there was not a tabula rasa when it came to the development of illegal immigration. Former ‘iron curtain’ borders were easier to protect than those that had previously been within the Soviet bloc. Most illegal immigration from the Czech Republic to Germany took place over the old border between Czechoslovakia and the German Democratic Republic. Not only was the terrain easier and the infrastructure more developed, but local citizens were more used to moving around in the border area and, being less prosperous than in the West, some were more easily tempted into collaboration with people-smugglers. Likewise, it was not uncommon for organized crime groups to involve persons who had studied in Czechoslovakia in the communist period and therefore had local knowledge. Immigrants who came to work (legally and illegally) also tended to be from communist or formerly communist countries.24 Such states dominated the ‘top ten’ countries with citizens living legally in the Czech Republic and Slovakia, joined some way down the list by Germany, and in the Czech case also the USA. Over a quarter of ‘foreigners’ legally living in the Czech Republic were Slovaks, and over a sixth of ‘foreigners’ in Slovakia were Czechs, who could live and work in the other republic virtually without restriction.25 They were followed closely by Ukrainians in formal statistics, but in practice the real number of Ukrainians, at least in the Czech Republic, was far more significant since large numbers were working there illegally after entering the country on tourist visas.26 Czechs had already noted

Perceptions of Internal Security 13

in the 1990s that the Czech Republic had become an immigration country27 (although this did not preclude some who worked there later trying to move on westward). Ukrainians were particularly noticeable in the building trade, although they also worked in textile factories, bakeries and other unpopular jobs. When restrictions on their employment were introduced in the late 1990s, many merely applied for business licences, which liberal Czech attitudes enabled them to obtain, even though all they traded in was their own manual labour. 28 When this possibility was reduced, and visas were introduced in 2000, they appear to have shifted to seeking asylum: a doubling of asylum applications to the Czech Republic in 2001 was accompanied by a similarly sharp drop in 2002 as asylum-seekers were banned from working during their first year after they had applied.29 Asylum-seeking was a further complex area. The accession states had largely been without any formal structures for dealing with refugees in the communist period.30 The EU accession process forced them to improve procedures so that they were ‘safe third countries’ to which asylum seekers could be returned if they moved through them to seek asylum further west. Asylum-seeking within the CEECs also became increasingly common in the 1990s. Applications increased from 2207 in the Czech Republic in 1993 to 8481 in 2002.31 In Slovakia, numbers increased from 96 in 1993 to 9743 in 2002, with a large jump from 1556 in 2000 to 8151 in 2001 – precisely the period when the number of persons detained illegally crossing the border into Slovakia also jumped from 3823 to 10,773.32 Whereas citizens from post-communist countries dominated among asylum-seekers in the Czech Republic, as with legal migrants, this was less true in Slovakia, where the phenomenon was more closely linked with unsuccessful attempts to reach the West. In both states many asylumseekers rapidly disappeared from the reception centres to which they were sent as they made further attempts to move west, and asylum applications lodged were frequently not pursued because the individual concerned had quietly disappeared. The Czech authorities noted the coincidence between the nationalities of persons detained illegally crossing the state border and those who disappeared from refugee camps.33 International standards for dealing with asylumseekers in the EU did not, therefore, always function smoothly in the case of migration flows through states that were largely transit countries. Slovakia was forced by the EU to abandon a rule that required

14

The AFSJ in the Enlarged Europe

asylum-seekers to lodge their application within 24 hours of entering the country in order for it to be admissible, although this had some logic when most asylum requests were made only if the individual concerned was detained, usually when illegally leaving the country in a westward direction. Czech moves towards closed detention centres for those caught illegally crossing borders were a logical response to problems of asylum system abuse. Illegal migration also linked in with questions related to visas. Many illegal migrants in both the Czech Republic and Slovakia had entered legally and either overstayed, or taken employment contrary to conditions of entry, or attempted to leave illegally over a western border.34 Given that the accession states would all eventually be issuing Schengen visas valid for the entire zone, harmonizing their procedures was particularly important. Priorities were not always the same, however: states such as Slovakia, and Poland, which bordered on the former Soviet Union, were particularly concerned that the area should be stabilized, and were therefore unhappy about building a ‘fortress Europe’ that excluded it entirely. The problems of states further west that were far stronger magnets for migrants were not always appreciated. Questions of policing, and in particular the fight against organized crime, which was most relevant for enlargement because of its strong transnational dimension, had been looked at in regularly updated strategy documents in both the Czech Republic and Slovakia since the second half of the 1990s35 and led to a number of structural changes which are looked at in more detail in Chapter 3. However, while more prominent cases of foreign ‘mafia’ involvement, such as the occasional shoot-out, gained newspaper attention, many citizens were more deeply concerned with the general corruption of political life in their country.36 The Czech and Slovak governments both introduced anti-corruption campaigns.37 This too matched the EU accession agenda. The striving for more transparency in public life and the fight against corruption were key to preparing the candidate countries for EU membership. The accession negotiations were complicated by the need to ensure that the new member states would be capable of carrying out the obligations they had accepted. The difficulties in ascertaining this had two dimensions. First, post-communist countries had a problem in implementing an internal security agenda since the state was

Perceptions of Internal Security 15

bureaucratic and inefficient. Although communist states are viewed as strong states that exercised excessive control over their citizens’ lives, by the 1980s they had become ‘soft’ states that had problems systematically implementing and enforcing their policy goals. They were successful in limiting citizens’ freedom because they were able to use clumsy authoritarian means of coercion without democratic accountability, but they were generally weak in achieving positive aims. Under communism, people had been implementing a nonindigenous (Soviet) agenda passed down through local communist parties, so the imperative was to feign compliance by demonstrating on paper the existence of the required structures, and producing documents claiming that the required results had been achieved. What actually happened was considered less important: beneath a communist veneer, people muddled through as best they could using a mixture of corruption and contact networks. The consequence of this was that once the cruder coercive mechanisms of the communist period had been removed, the state found it hard to develop competence in implementing complex mechanisms for controlling criminal and antisocial behaviour for the common good. This was an extremely unhelpful background to the EU accession negotiations. In many respects, another external agenda was being imposed that did not always seem to meet local needs so there was an innate danger that the accession states would respond to the formal EU agenda by obediently harmonizing legislation but then not actually implementing it. One response to the danger of weak implementation was that in June 1998, the European Council adopted a joint action ‘for collective evaluation of the enactment, application and effective implementation by … [the candidate countries] of the acquis of the Union in the field of Justice and Home Affairs’.38 This Collective Evaluation Working Group operated alongside existing procedures for conducting the accession negotiations, and illustrates the second dimension to the implementation problem. A special working group involving representatives from the member states rather than European Commission experts was necessary not just because of the sensitivity of the issues involved, but also because the European Commission lacked much expertise in the area of justice and home affairs. Chapter 24 was not opened with the first group of candidate states until May 2000, more than two years after negotiations began, and after the working group had produced its first reports.

16

The AFSJ in the Enlarged Europe

The two dimensions overlapped, however. Even where candidate state interior ministries were anxious to adopt and implement EU standards in, for example, the area of policing, the structures in place in different member states were often so divergent that it was hard to identify what was best practice worthy of emulation.39 When officers from member state police forces worked as pre-accession advisers with colleagues in a candidate state under the ‘twinning scheme’ introduced in 1998, it was possible for successive advisers to propagate noticeably different models of policing. The whole area of justice and home affairs was a classic case of why joining the European Union was like jumping on to a moving train: the existing member states were still working out how their own different traditions could be combined into the AFSJ while the candidate states had to prepare to join whatever might be transpiring from this process.

Joining the new Europe, 2003– The justice and home affairs chapter of the EU accession negotiations with the ten states that joined in May 2004 was provisionally closed (pending final closure in December 2002) from late 2001 to the summer of 2002, as shown in Table 1.1. Negotiations had not, in the end, been as complicated as originally predicted, despite the fact that in the Czech and Slovak cases the European Commission’s first two annual ‘Regular Reports’ on their progress towards accession had been largely negative about achievements in the justice and home affairs area,40 and by the second report in 1999, Chapter 24 was being looked at much more closely. The achievements made by the time the accession treaties were signed in April 2003 were considerable. On the most basic level, within the new member states there has been an increase in élite and public awareness of justice and home affairs issues and their importance. It is now widely appreciated that protecting the EU’s outer borders is essential in order to remove border controls at the EU’s inner borders between old and new member states. The agendas have therefore to a large extent converged in appreciating that the EU’s AFSJ must be a single area. There has also been an internalization of the fact that corruption matters, and something needs to be done about it, and, most importantly, that something can be done about it. At a domestic level, this coincides with citizens’ concerns when

Perceptions of Internal Security 17

Table 1.1 Time taken to negotiate Chapter 24 (justice and home affairs) in the EU accession negotiations Country

Chapter opened

Chapter provisionally closed

Duration of negotiations

First group Hungary Cyprus Czech Republic Slovenia Estonia Poland

May May May May May May

2000 2000 2000 2000 2000 2000

November 2001 December 2001 December 2001 December 2001 March 2002 July 2002

18 19 19 19 22 26

Second group Malta Lithuania Latvia Slovakia

June June June June

2001 2001 2001 2001

March 2002 April 2002 June 2002 June 2002

9 months 10 months 12 months 12 months

months months months months months months

Source: European Commission www.europa.eu.int.

judging the conduct of domestic political life; it is not merely a response to EU criticism. There has also been a gradual stabilization of interior ministry personnel. The second half of the 1990s had been particularly problematic not only because the more competent staff with foreign languages were frequently tempted to more highly paid jobs elsewhere, but also because of the tendency for civil servants to change along with the minister. There have been huge improvements on a technical level as well. This includes structural changes, such as the demilitarization of border guards, for example in Slovakia and Poland. The Czech Republic and Slovakia have reorganized the border and aliens police to end the system where management of border crossings and green borders was divided. There has been a massive increase in the technology of border protection systems, and accompanying technical training. The focus is increasingly on the new external borders, although the Czech Republic did announce shortly before enlargement took place that it was increasing controls on its border with Slovakia, thereby restricting movement across the border by Czechs and Slovaks living in the vicinity. A number of issues concerning visas have also been harmonized with EU practice. The positive and negative lists of visa countries are

18

The AFSJ in the Enlarged Europe

now the same throughout the new EU; the physical shape of visas has been changed, with stickers instead of stamps; and passport checks at borders have been mechanized. Preparations for the Schengen Information System are also advanced. Laws on short-term and longterm residence have been changed to make categories compatible with those in the old EU, more complex issues such as deportation procedures have been amended, and there has been substantial progress on readmission agreements with third countries. The establishment of procedures for dealing with asylum applications has also been made compatible with EU standards, including the introduction of an independent appeal system. Slovakia removed the condition obliging asylum-seekers to lodge their applications without 24 hours of entering the country. Systems for the management and accommodation of asylum-seekers, and the integration of successful applicants, have been improved. At a police and judicial level, both the Czech Republic and later Slovakia have changed their unwieldly systems of dealing with police and judicial investigation, which had involved unnecessary duplication of procedures, especially the collection of evidence. There has been an increased focus on dedicated units for dealing with organized crime, which have started to produce results. Immensely complex legislation had to be introduced to cope with money laundering, but this was compatible with the domestic agenda of combating corruption. Accelerated by the need to join Europol, sophisticated international police cooperation structures have also been developed, with the widespread use of police liaison officers, which required among many other preparations training in the necessary linguistic skills. There has also been a start with dealing with other complex issues, such as hot pursuit across borders. Further examples of the demanding legislative requirements for guaranteeing justice and home affairs cooperation was the passing of data protection acts, and the practical implementation of the measures concerned. This was a precondition for establishing the trust necessary for data exchange internationally, while also representing an improvement in civic rights domestically. Last but not least, there has been a gradual shift in Western perceptions, which initially regarded the post-communist accession states as ‘outsiders’ rather than ‘insiders’. This did not mean automatic trust, but rather that over the years of the accession process, the structural weaknesses of the countries involved were regarded as a problem

Perceptions of Internal Security 19

of the AFSJ as a whole. It was no longer feasible for East Central Europe to be viewed as an external threat. Moreover, after 11 September 2001, US security discourse that was preoccupied with Islamic terrorism also dominated European debate on internal security, and less was heard of Russian mafias and other threats from Eastern Europe. While support for military intervention in Iraq on the part of EU candidate state governments annoyed ‘old Europe’, and tended to suggest that in security matters their allegiance lay more with US-led NATO than with a Franco-German-led EU, the entire dispute none the less illustrated that they were clearly defined as ‘insiders’ in fighting the major security battle of the Western world. Practical challenges remain, however. Ensuring that legislation is implemented and not merely harmonized is a continuing preoccupation. The draft EU constitution specifically made provision for introducing ‘objective and impartial evaluation’ of the implementation of Union policy on the AFSJ (see Chapter 8). This could potentially extend to all member states the monitoring of the candidate states carried out by the collective evaluation working group during the accession negotiations. The accession treaties also contained a safeguard clause on mutual recognition in criminal law and civil matters allowing for provisions to be suspended in the case of inadequate implementation of the relevant acquis.41 Each new member state was also required to prepare and start implementing a Schengen Action Plan before accession in order to ensure that there was a realistic chance of it becoming ‘Schengen-ready’ within a few years. More fundamentally, the lifting of Schengen border controls, together with joining the eurozone, is one of the two major hurdles left before enlargement is properly completed. It is of considerable importance to the citizens of the new member states, because freedom of travel has an enormous symbolic significance for people who lived under communism. In the 1980s, as the coercion of communist states became less brutal, and tourism within the Warsaw Pact states was commonplace, not being able to go to the West was an ever more prominent grievance of citizens behind the ‘iron curtain’. The dismantling of borders therefore has a deeper meaning than in Western Europe. There were, admittedly, some common misunderstandings about what EU membership meant in the accession states before enlargement. The transition periods imposed by most of the 15 old EU member states before granting the free movement of labour had

20

The AFSJ in the Enlarged Europe

been the most contentious issue publicly in the late stages of the accession process, and this was often confused with restrictions on travel. Citizens of the accession states did not always grasp that the free movement of persons would be granted in full from 1 May 2004, so that they could travel round the EU at will for personal reasons such as tourism and shopping, with only permission to work there restricted. It was also rarely appreciated that EU citizens had a right to cross Schengen borders, even though border guards could check whether or not they were indeed EU citizens. Even so, however, the physical disappearance of border controls had an intrinsic importance in Eastern Europe. There are also outstanding questions on how the AFSJ will develop. One is about future management of migrant flows. Burden sharing is not just a matter of coping with uneven numbers of asylum-seekers and refugees arriving in different member states, but also of the costs of defending the EU’s external borders. Furthermore, the fight against organized crime is not a problem that can be ‘solved’. The need to develop and improve transnational cooperation is permanent, since achievements and implementation capacity in any area to do with crime will always have more imperfections than in other areas. While, in other areas of the acquis, society’s flaws make enforcement measures necessary, in the area of crime they are the core of the issue at hand. In some respects, the new member states may find deepening cooperation in the justice and home affairs area easier than older member states. It is known as a domain where member state governments guarded their competencies particularly jealously. Over the last few years, however, the states of Central and Eastern Europe have become rather used to people visiting their police headquarters and interior and justice ministries and telling them what to do, or writing reports about their problems with corruption levels. A system where such devices are mutual, and where they themselves also monitor others, may appear rather attractive in comparison. Postcommunist states have, over the last 15 years, developed an enormous capacity for adaptation and change, at both official and public level. Unless there is a backlash against interference after they have finally achieved the long-awaited goal of EU accession, they are likely to be less problematic participants in the process of developing the AFSJ than some old member states.

Perceptions of Internal Security 21

Notes 1 For one recent account see V. Mitsilegas, J. Monar and W. Rees, The European Union and Internal Security: Guardian of the People (Basingstoke: Palgrave, 2003), Chapter 5. 2 The journal Kriminalistika and the Institute for Criminology and Social Prevention at the Ministry of Justice. 3 B. Buzan, O. Wæver and J. de Wilde, Security: A New Framework for Analysis (Boulder and London: Lynne Riener, 1998), p. 24. 4 For European Commission Eurobarometer data, see http://www.europa. eu.int/comm/public_opinion/archives_en.htm. 5 See for example Sˇtatisticky úrad Slovenskej republiky, Názory verejnosti na prácu policajného zboru z aspektu prevence kriminality a krádezí vlámaním do bytov, Sˇtatistické analyzy a informácie e. 471/1996. 6 Ministry of the Interior of the Czech Republic, Zpráva o situaci v oblasti migrace na území Eeské republiky za rok 2002, Prague, 2003, pp. 32–3. 7 Úrad hranienej a cudzineckej polície policajného zboru Bratislava, Legálna a nelegálna migrácia v Slovenskej republiky za rok 2002, Bratislava, 2003, p. 17; Odbor hranienej a cudzineckej polície Prezídia Policajného zboru, Vyhodnotenie roka 1998, Bratislava, 1999, p. 6. 8 Extensive surveys have been carried out in the Czech Republic examining to what extent foreigners rather than Czechs are involved in organized crime. See M. Scheinost, ‘Vyzkum organizované kriminality v ER v letech 1994–1996, hlavní zjistfní a doporueení’, Právní praxe, 45 (1997), 302–11; M. Cejp et al., Vyzkum organizovaného zloeinu v Eeské republice II (Prague: Institut pro kriminologii a sociální prevenci, 1999). 9 Buzan et al., Security, p. 40. 10 For some Czech views on this, see M. Cejp, Spoleeenské príeiny a dusledky organizovaného zloeinu (Prague: Institut pro kriminologii a sociální prevenci v Praze, 1999), pp. 18–21. 11 For discussion of securitization in the Slovak context, see A. Duleba, ‘Country Report: Slovak Republic’, PROGRES Project, University of Groningen – Theme 4: Security in Europe: (New) Threats on the Agenda, Budapest, 19–20 November 1999 (unpublished paper). 12 See A. Duleba, The Blind Pragmatism of Slovak Eastern Policy: The actual agenda of Slovak–Russian bilateral relations (Bratislava: Research Centre of the Slovak Foreign Policy Association, Occasional Paper 01, 1996). 13 For public opinion on Slovakia’s foreign policy direction, see Z. Bútorová, ‘Verejná mienka’, in M. Bútora and M. Ivantysyn (eds), Slovensko 1997: Súhrnná správa o stave spoloenosti a trendoch na rok 1998 (Bratislava: Institút pre verejné otázky, 1998), pp. 216–19. 14 Duleba, Country Report. 15 K. Henderson, ‘The Path to Democratic Consolidation in the Czech Republic and Slovakia: Divergence or convergence?’, in G. Pridham and A. Agh (eds), Prospects for Democratic Consolidation in East-Central Europe (Manchester: Manchester University Press, 2002), pp. 205–37.

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The AFSJ in the Enlarged Europe

16 For the ‘Copenhagen criteria’ for EU membership, see European Council, ‘Presidency Conclusions’, Copenhagen European Council, June 1993; for the European Commission’s opinions on the candidate states, see European Commission, ‘Agenda 2000: For a stronger and wider Union’, Bulletin of the European Union, Supplement 5/97, 1997. 17 Mitsilegas et al., The European Union and Internal Security, p. 130. 18 Ibid., p. 160; G. Amato and J. Batt, Final Report of the Reflection Group on the Long-Term Implications of EU Enlargement: The Nature of the New Border (Badia Fiesolana: Robert Schuman Centre for Advanced Studies, European University Institute with Forward Studies Unit European Commission, 1999), p. 62. 19 On trust in the police in both countries, see Akadémia policajného zboru v Bratislava, Vyvoj dôveryhodnosti policajného zboru a analyza faktorov, ktore ju oplyvmujú, Bratislava, 2000, http://www.minv.sk. 20 See ‘Názory obeanov na potrebu podplácania a vyh adávania protekcia’, Názory, 14/3 (2003), p. 4; J. Buriánek, ‘Verejnost’ a krimininalita v ER: trendy vyvoje’, Sociológia, 32/1 (2000), 80–97. 21 The Treaty of Accession 2003 of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovakia and Slovenia, signed in Athens on 16 April 2003, Annex 1. Available at http://www.europa.eu.int. See also Official Journal of the European Communities, L 236, 2003. 22 European Council, ‘Presidency Conclusions’, Copenhagen European Council 12 and 13 December 2002, Annex 1; The Treaty of Accession, Article 35. 23 E. Bort, Illegal Migration and Cross-Border Crime: Challenges at the Eastern Frontier of the European Union, EUI Working Paper RSC No. 2000/9, Florence, EUI, 2000, p. 13; P. Hapák, ‘Aktuálne problémy nelegálnej migrácie na státnej hranici SR’, in Akadémia policajného zboru v Bratislave, Nelegálna migrácia osôb v stredoeurópskom regióne, Zborník z medzinárodného seminára konaného dma 9.9.1999, Bratislava, 2000, p. 28; M. Scheinost, Nelegální migrace a prevadfeství jako jedna z aktivit organizovaného zloeinu (Prague: Institut pro kriminologii a sociální prevenci, 1995). 24 Czech Republic/Slovakia, Ukraine, Vietnam, Poland, Russia, ‘Yugoslavia’, China, Hungary, Bulgaria and Romania. 25 Ministry of the Interior of the Czech Republic, Zpráva o situaci v oblasti migrace na území Eeské republiky za rok 2002, p. 33; Úrad hranienej a cudzineckej polície policajného zboru Bratislava, Legálna a nelegálna migrácia v Slovenskej republiky za rok 2002, p. 17. 26 One estimate in the late 1990s was that there were 400,000 registered and unregistered foreigners in the Czech Republic. D. Drbohlav, ‘International Migration and the Czech Republic’, in M. Hampl et al., Geography of Societal Transformation in the Czech Republic (Prague: DemoArt/Charles University, 1999), p. 239; a higher estimate is 300,000 in the mid-1990s, C. Wallace, O. Chmouliar and E. Sidorenko, ‘The Eastern frontier of Western Europe: mobility in the buffer zone’, new community, 22/2 (1996), p. 275.

Perceptions of Internal Security 23

27 D. Drbohlav and Z. Eermák, Migrace jako bezpeenostní factor soueasnosti, Univerzita Karlova, vyzkumny project zpracovany pro Ministerstvo zahranieních vfcí ER, Prague, June 2000, p. 33. 28 Ibid., p. 96. 29 The numbers of asylum applications increased from 7217 in 1999 to 8788 in 2000 and 18,088 in 2001, then went down to 8481 in 2002; of these, there were negligible numbers of Ukrainians in 1999, but 1145 (15.9 per cent) in 2000, 4420 (24.2 per cent) in 2001, and 1464 (21.7 per cent) in 2002. Ministry of the Interior of the Czech Republic, Zpráva o situaci v oblasti migrace na území Eeské republiky za rok 2002, pp. 39, 90; Zpráva o situaci v oblasti migrace na území Eeské republiky za rok 2001, p. 44. 30 See S. Lavenex, Safe Third Countries: Extending the EU Asylum and Immigration Policies to Central and Eastern Europe (Budapest and New York: Central European University Press, 1999). 31 Ministry of the Interior of the Czech Republic, Zpráva o situaci v oblasti migrace na území Eeské republiky za rok 2002, p. 39. 32 Migraeny úrad Ministerstva vnútra Slovenskej republiky, http://www.minv.sk; Úrad hranienej a cudzineckej polície policajného zboru Bratislava, Legálna a nelegálna migrácia v Slovenskej republiky za rok 2003, p. 33. 33 Ministry of the Interior of the Czech Republic, Information on the Migration Situation in the Territory of the Czech Republic in 1999, p. 6. 34 European Parliament, ‘Migration and Asylum in Central and Eastern Europe’, Directorate General for Research, Working Paper, Civil Liberty Series LIBE-104EN, p. 56; M. Kutlík, ‘Problémy nelegálnej migrácie na regionálnej úrovni’, in Akadémia policajného zboru v Bratislave, Nelegálna migrácia osôb, pp. 36–53. 35 Ministry of the Interior of the Czech Republic, Updated Strategy of Combating Organized Crime, Prague, 1997; the Slovak government approved a Comprehensive Programme of the Fight against Crime in 1999. 36 Transparency International Corruption Perception Index 2003 shows the Czech Republic and Slovakia at 54 and 59 in a list of 133 countries, which is below all old EU member states, and most new ones. See also E. Síeáková, Faces of Corruption in Slovakia I (Bratislava: Transparency International Slovakia, 1999); P. Frie et al., Korupce na eesky zpusob (Prague: G plus G, 1999). 37 In 1998, the incoming Slovak government compiled unflattering ‘Black Books’ on problems, including corruption, in the ministries of justice and the interior – Ministerstvo vnútra Slovenskej republiky, Analyza zdedeného stavu v rezorte ministerstva vnútra (eierna kniha), Bratislava, January 1999 and Ministerstvo spravodlivosti Slovenskej republiky, Eierna kniha (Analyza zdedeného stavu v rezorte ministerstva spavodlivosti), Bratislava, January 1999 – followed by an anti-corruption campaign with a government office web page at http://www.vlada.gov.sk/bojprotikorupcii. See also Vládní program boje proti korupci v Eeské republice, 1999, www.mvcr.dokumenty/korupce/zprava.htm.

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38 Council of the European Union, ‘Joint Action of 29 June 1998’, Official Journal of the European Communities, L 191/8–9, 7 July 1998. 39 Amato and Batt, Final Report of the Reflection Group, p. 62. 40 For the full set of progress reports, see Commission of the European Communities, COM(1998) 700–11 final, 17 December 1998; COM(1999) 500–14 final, 13 October 1999. 41 The Treaty of Accession 2003, Article 39.

2 Organized Crime in the New EU States of East Central Europe Miroslav Nozina

Introduction The new EU member states in Central Europe have a crucial geographical position in Europe, for as transit countries from East to West and vice versa, they have a strategic role in combating crossborder crime. Since the ‘iron curtain’ fell in 1989, many criminals have begun using their territories for illegal activities such as illicit trading in drugs, stolen vehicles, alcohol, cigarettes, weapons, explosives and nuclear materials, and aliens, as well as counterfeiting, professional theft, extortion, racketeering, financial frauds and money laundering. The local underworlds in Poland, Hungary, Slovakia and the Czech Republic meet with criminal groupings from the former Soviet Union, the Balkans, Italy and Western Europe, Asia, Latin America, Middle East and Sub-Saharan Africa to create a new and much more developed crime industry. Organized crime also has a tendency to ‘buy’ members of parliament and bribe government officials, thus securing immunity from investigation and prosecution and creating a parallel economy of crime. Although regional differences exist, the basic mechanisms of organized crime activities and the building up of new security systems in the new EU states of Central Europe have in many aspects been identical. Consequently, this chapter will focus on these common trends.

25

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The AFSJ in the Enlarged Europe

The phenomenon of organized crime ‘Socialist style’ organized crime In the former Czechoslovakia, Hungary and Poland, the communist economic and political models of administration and the totalitarian police state were hidden behind almost impenetrable borders and this led to the creation of a specific ‘socialist’ criminal underworld that was in many respects different to the criminal underworlds of West European countries. Under strong police and social control, the ‘classical’ activities of organized crime were highly restricted. Trafficking of drugs, trafficking in arms, car theft, kidnapping, racketeering and trafficking in human beings were too risky, and also not very profitable because of the very limited local markets for illegal services and goods and the lack of foreign currency. Hermetically sealed borders efficiently blocked major imports of drugs, illegal migration and the export of stolen cars and goods. In Czechoslovakia and Hungary, for example, there was no black market for drugs in the classical sense. Drugs were peddled mainly in closed circles in which everyone knew each other, and the producers were also consumers. Imports of foreign drugs such as heroin or cocaine, and addiction to them, were very limited.1 Up until the end of the 1980s, there was only one registered cocaine addict in the former Czechoslovakia.2 The situation was slightly different in Poland, where more open borders allowed imports of drugs on a small scale even before the political changes of the 1980s. Nevertheless, dangerous ‘hard’ drugs did appear under communism. They were produced from various medicines, and their effects were commensurate with heroin or cocaine. In Czechoslovakia, these were mainly what was called pervitin, as well as metamphetamine, a classic stimulant, and also braun (that is, brown), which was codeine, an opium derivative. Pervitin was produced from ephedrine stolen from pharmacological factories and medicines such as Solutan that were distributed free of charge in the communist health care system. The main way of obtaining braun was from the readily available Alnagon medicine, mostly in fluid form. Other medicines were widely abused as well.3 The abuse of medicines was also prevalent in Poland and Hungary. In Poland, ‘Polish compote’ – a heroin-type drug made from the poppy – was widely produced domestically, mainly by the addicts themselves.

Organized Crime 27

In contrast to the situation in Western countries, drugs, illegal migration and prostitution never became the vehicle of ‘communist’ organized crime. Contract killing or racketeering were virtually unknown. Its main domain was economic crime. The long-term crisis of the socialist system had created a situation where the chronic lack of certain goods and services was covered from semi-legal and illegal sources. Some criminal groups with varying levels of organization successfully operated in this sphere. Their members were engaged in a wide spectrum of economic criminal activities including the import and distribution of goods in short supply, illegal currency exchange, exports of works of art, theft and sale of goods.4 These groupings lasted for years, although in most cases they were not strongly hierarchically or vertically organized, and their members were tied together only on the basis of mutual advantage.5 Vast corruption networks were formed, which penetrated deep into the spheres of the state economy and bureaucracy. A new stratum of ‘socialist nouveaux riches’ emerged in communist societies – grey entrepreneurs and people who exploited their position in the state apparatus and Party nomenklatura. These people have continued to cooperate even after fall of communism, frequently outside the limits of the law.6 Democratic changes in the 1980s and 1990s At the end of 1980s, the communist states of Central Europe embarked upon a process of fundamental political, social and economic transformation. As the borders and the economy opened up, the East Central European (ECE) states became part of global processes. More people and goods arrived, and there was more transit across their territory. Far-reaching economic transformation was combined with extensive transfers of property, and the rapid creation of markets and capital. The changes were often accompanied by major economic and social problems, including rising unemployment and falling living standards. Deep-rooted truths as well as personal everyday experiences and routine rules of practical activity ceased to apply. New patterns and criteria of social success were established, norms of social behaviour became relative, social regulation and control were undermined – and all this in a situation where the legal and ethical awareness of society had already been warped by developments over the long years of communism. The existing state of social awareness contained risk factors that paved the way for anti-social behaviour.

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The AFSJ in the Enlarged Europe

In the new model of social success, material gain was placed at the forefront, frequently with no regard for where it came from. Ethical standards had been weakened by the moral devastation and unfulfilled consumer aspirations of the previous era. Legislation also underwent fundamental changes. This was a gradual process accompanied by many difficulties, and often considerable delays, before legislation could establish the legal provisions for a more effective struggle against crime. The judiciary, the police and the administrative apparatus had adapted well to the conditions of ‘socialist style crime’, but had almost no experience in investigating the new forms of crime that were now coming from abroad.7 In Poland, the number of crimes registered by the police increased from 547,580 in 1989 to 883,346 in 1990 and 1,404,229 in 2002.8 The situation in Czechoslovakia was similar: in the Czech part of the country the number of crimes committed more than tripled from 120,769 in 1989 to 398,505 in 1993 and 426,626 in 1999. However, Czech police statistics then report a decrease in the number of detected crimes to 372,341 in 2002.9 Slovakia also faced a stormy time in the 1989–93 period, when the number of crimes grew by 350 per cent. As in the Czech Republic, the situation then stabilized.10 In 2001, only 93,053 crimes were committed in Slovakia.11 Hungary also reports a decrease in registered crime at the end of the 1990s, with a decline of 15 per cent in 1999.12 With the exception of Poland, after the dramatic transition period in the early 1990s criminality began to stagnate throughout East Central Europe (ECE) at the end of the decade. According to Interpol sources, the volume of crime per 1000 inhabitants was as follows: Hungary: 41.4 (2002); Czech Republic: 36.3 (2002); Poland: 35.9 (2001); Slovakia: 16.9 (2001). By comparison, Sweden reported 78.9 (2002); the United Kingdom (England and Wales): 99.3 (2001); the UK (Scotland): 82.2 (2001); the UK (Northern Ireland): 23.8 (2001); the Netherlands: 78.1 (1998); Austria: 72.7 (2002); France: 69.3 (2002); Italy 37.5 (2001); Spain: 23.6 (2001).13 These data have only orientational value owing to the different systems of statistical analysis, the varying definitions of criminal offences and legislation, divergent levels of confidence in the police and so on in individual countries. Nevertheless, all ECE states experienced a dramatic increase in crime after the democratic changes, but only by ‘local standards’. During the communist regimes crime

Organized Crime 29

rates were very low, and far below the levels of crime in Western countries. The rise in crime is only spectacular when compared with the previously low level of criminality. The main problem is not the ‘quantity’ of criminal offences, but the ‘quality’, with frequent links to organized crime. Because of this, many criminal offences considered to be petty crimes during the communist regime, such as illegal trade in drugs, people, weapons, cars, and crimes of violence, have become highly professionalized and are now carried out much more widely. The social and economic losses due to crime are higher than ever before.14 Organized crime structures in East Central Europe After the fall of communism, the ECE states were societies in transition with permissive laws, unprotected frontiers, an advantageous geographic proximity to the European Union, and police forces inexperienced in the investigation of organized crime. The political changes and social turmoil produced many people eager to make easy money regardless of the law. All this created numerous opportunities for criminal operations. The status quo on the criminal scene changed dramatically. The restructuring of organized crime started very quickly, at the beginning of the 1990s. The underworld was generally formed in two ways in the ECE states: from local sources and from abroad. Traditional local criminal underworlds became progressively better organized after they were joined by members of former communist nomenklatura, former ‘grey’ businessmen, state security service members and, increasingly, corrupt public officials. They created a new criminal subculture able to control local underworlds and to penetrate and influence the newly created state administrative structures. However, they were not the main bearers of the new modern methods of criminal ‘business’. Generally, these came to post-communist Central Europe from abroad. The main motor of criminal activity was international organized crime. For rapacious criminal groups operating with highly professional methods, the local underworld represented but trivial competition. By skilfully using gaps in immigration and business laws, most particularly the lax approach to setting up companies, as well as ‘dirty’ money from abroad and the services of local people, practically all the main transnational criminal groupings established themselves in East Central Europe in the early years of

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The AFSJ in the Enlarged Europe

the democratic transition. The participation of foreign nationals in criminal acts has been on the rise. This applies in particular to citizens of former Soviet republics. According to expert estimates, there are currently approximately 75–100 organized crime groups operating in the Czech Republic with 2000–2500 members. The number of ‘external assistants’ is likely to be approximately the same. More than a third of the organizations are highly developed. Former Soviet citizens, most particularly from Russia and Ukraine, form the largest foreign element in organized crime, followed by citizens of the former Yugoslavia, Bulgarians, Albanians, Vietnamese and Chinese. The presence of groups from elsewhere in the Balkans (Turkey, Romania, Greece), Italy, the Middle East, Sub-Saharan Africa and Latin America together with groups from other ECE states has been also registered. The largest groups identified in the Czech Republic are three of Russian origin, each with about 100–200 members. Russian and Ukrainian groups of a smaller size, with about 50 members, have been observed in some parts of the country. Half of the groups have mixed Czech/foreign composition, including more exotic nationalities such as Chinese and Vietnamese, while slightly more than a quarter are composed exclusively of foreigners. This indicates that there is cross-border activity involving all neighbouring countries, as well as some outside Europe. Operations often involve Czech territory as a transit area from east to west, where target countries are primarily those nearby, such as Hungary, Italy, Spain and France. Additional traffic from the Far East and Africa is routed via the Czech Republic to the USA and the Caribbean. Illegal migrants are often gathered in Ukraine and other countries of the former Soviet Union, Asia and the Middle East and then smuggled across Slovakia, Hungary and Poland to the Czech Republic, and from there to Western countries. The strongest contingents of Czechs engaged in organized crime have been registered in France, Italy, Bulgaria, Croatia and Romania.15 Slovakia also reports well-organized hierarchical structures of organized criminal groups. In 1998, the Slovak police had information on 52 groups active on Slovak territory that comprised 600 members.16 In 2002, the Slovak Police registered 33 groups, of which seven were eliminated during the course of the year. They also cooperate with foreign criminal groups, in particular where drug-related activities are concerned. Group leaders are typically Slovak nationals, though

Organized Crime 31

groups involved in drugs offences have foreign leaders, usually from Albania or Kosovo, or from former Soviet republics. Groups sizes range from five to 50 members, with an average of 15 members per group. The entire territory of Slovakia, and the biggest cities in particular, are divided up between organized crime groups. Slovaks also collaborate with foreign groups elsewhere in and outside Europe. All neighbouring countries generally rank as partner countries. Cooperation with organized criminal groups in other European countries varies according to the commodity. Romania is used for stolen cars; Germany, Italy, Spain and Netherlands are partners for the trafficking of women; other EU states are used for people-smuggling; and contacts with Scandinavia, the Netherlands, Germany, Turkey, Albania, Bulgaria and Romania are used for drug trafficking. Non-European countries include drug producers such as Colombia and other Latin American countries, and Asian countries.17 According to a European Committee on Crime Problems report, in 1999 Hungary had 76 active organized crime groups, with a total of 1982 individuals suspected of involvement – an average of 26 persons per group. Six massive groups were observed, each with 100–300 members, the largest ones operating in the Budapest metropolitan area. Nearly half (34 groups) had between five and ten members, and 28 groups had between 11 and 30 members. The structure of groups is typically hierarchical in nature. Many groups operating independently of the larger ones also have a hierarchical structure. Of 62 hierarchical groups observed, 38 had one leader, eight were ruled by two or more individuals, and 16 hierarchical groups had a multi-layered management structure. More than half the organized crime groups consisted of Hungarian citizens only. One-third had mixed membership and seven groups consisted exclusively of foreign nationals. The largest group of foreigners participating in the organized crime scene was formed by persons from former Yugoslavia (in 11 groups). Citizens of Slovakia (seven groups) and Ukraine (seven groups) were also numerous. Arabs, Turks, Germans, Russians, Sub-Saharan Africans, Albanians and Romanians were also observed. Isolated instances of organized crime groups involving citizens of other European countries were also found, as well as groups containing Armenians, Georgians, Chinese and Australians. The majority of groups operate in a large geographical area spanning several counties within Hungary. The metropolitan area of Budapest

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and the northern counties are the most important. Eleven groups were found to operate beyond the borders of Hungary. The connections mainly encompass Slovakia and Ukraine. However, the Netherlands, Germany, Italy, Romania and Austria also play a role. It has been noted that links to Slovak organized crime groups often involve violent crimes, and Slovak groups are also very active in trading large volumes of arms and explosives.18 In 2002, Poland’s Bureau for Fighting Organized Crime registered 522 organized criminal groups with 6134 members. A total of 417 groups were Polish and 86 groups were mixed. Criminal groups included 381 foreign citizens. Taken as a whole, the organized crime scene in Poland is composed of foreign nationals from over 30 countries, with a preponderance of Ukrainians and Belarusians (25 per cent; nine registered groups were homogeneous, with nationals of Russia, Belarus and Ukraine). The other major nationalities are German, Turkish, Russian, Lithuanian, Italian and Vietnamese.19 Groups with more complicated structure, for example a cell-based one, are not very common, but do exist, mainly among internationally based groups engaging in theft, the legalizing and smuggling of motor vehicles, the production, smuggling and trafficking of drugs and the transfer of people across borders. However, the prevailing structure is hierarchical, with two or three different levels. Every group has a single leader and a few other members belonging to some sort of collective leadership. Other members, so-called soldiers, are usually not full-time members. They are hired to do a specific job. Therefore groups are usually not stable apart from the leadership, and constantly change according to the prevailing needs and opportunities.20 As a whole, the size, composition and spheres of organized crime in the countries of East Central Europe have become very similar to the situation in the rest of the European Union. Criminal organizations are directly linked to foreign countries, and their activities copy the trends of international organized crime.21 Organized crime in the economy and society of East Central Europe The lack of reliable empirical data makes it very difficult to determine to what extent organized crime is a real threat to the economy and society of the ECE states. Even sources within the police and judiciary do not have a common view on the seriousness of these

Organized Crime 33

problems: whereas the police states that they are really serious, the judiciary usually claims that the police exaggerates the situation. Expert answers to a questionnaire of the EU/Council of Europe Octopus project on corruption and organized crime22 suggest some negative trends in the overall structure of crime in ECE. In particular, the danger of falling victim to crime against life and health has increased, and the same applies to offences against property where aggression, violence and brutality are used against victims. Criminals use military equipment such as automatic rifles, home-made booby traps, grenades and remotely controlled explosive charges. Crimes linked to the settling of scores between criminal groups have also been on the rise, including murder, robbery, assault and criminal terrorism. A new category of serious crime has also appeared: contract killings that are often committed by professional hitmen. The professionalization of crime and the participation of foreign nationals in criminal acts have increased. The sharp rise of some illegal activities, especially those with an international dimension such as the illegal drugs trade, the exploitation of prostitution, racketeering, and the smuggling of people, vehicles, works of art and weapons is directly linked to organized crime. Organized crime is not only connected to traditional illegal activities but also to white-collar and corporate crime, or at least to the purchase of real estate within the framework of the privatization process. According to the Corporate Governance Risk Survey, the business environment in East Central Europe is not perceived as violent or dominated by organized crime, yet respondents expressed concern about the opaqueness of public tenders and the prevalence of corruption.23 In this milieu, criminal organizations continually try to maximize their legal activities, mainly through purchasing as much real estate and land as possible, penetrating legal companies and commercial structures, and employing special financial and legal advisers. In the sphere of international organized crime, several very dangerous tendencies have been registered. Nearly all international groupings have created a stable base in the region of East Central Europe. They had two main interests in the region: easy access to Western Europe, exploiting the fact that people could travel through the EU with few restrictions on a Czech, Hungarian, Polish or Slovak passport even before EU enlargement; and the region’s own criminal business potential.

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The AFSJ in the Enlarged Europe

Russian-speaking groups represent the major threat in this sphere. ‘Russians’ have a lot of funds, which are mainly being invested in real estate in the region. Due to their constant infiltration of the state structures in the CIS countries, their influence and power is broadening. According to Czech Security Intelligence Service findings, a gradual transition from openly criminal activities to legal business operations is typical. They arrive in the ECE countries with capital from crimes already committed elsewhere, and then utilize the capital to establish legal trading companies. The number of casinos, restaurants and business companies owned by Russians, or with Russian participation, is growing steadily in the Czech Republic. There are more than 200 Czech–Russian joint ventures in Prague, a considerable number of which act as a respectable front for criminal activities. Russians invest in hotels, casinos, restaurants and other real estate in Prague and the well-known spa towns of Karlovy Vary and Mariánské Láznf.24 Hungarian territory is also frequently used by Russian-speaking organizations. The participation of such organizations in the privatization of two Hungarian armsproducing companies was especially alarming.25 Information gathered by Poland’s Bureau for State Protection also indicates that significant numbers of Russian organized crime groups operating in the USA are trying to take over criminal groups in order to stabilize their position in Poland. After taking up residence, the tendency is for organized crime bosses to penetrate economic and political life. Especially in the last few years, the police have also registered attempts by Russian-speaking criminals to penetrate and corrupt the state administration, and to place their members or collaborators in governmental bodies and political parties. They often try to involve company employees as well as high-ranking state officials, members of parliament and celebrities in illegal activities by offering them profitable posts in business, or by sponsoring political parties. A confidential report by the Czech Interior Ministry stated that the goal of organized crime was to gain control over the trade in strategic raw materials and banking, and to gain real power in the state by means of investment companies and funds, and contacts within the sphere of government.26 At a lower level, East Central Europe faces the danger of economic and social penetration by Italian, Balkan and ethnic Asian international crime organizations.

Organized Crime 35

There have been suspicions in recent years that Hungarian organized crime has been connected with the highest level of politics, and that top politicians are involved in activities of the so-called black and grey economy. Similarly, some Slovak official sources suggest that Slovakia’s major problem in suppressing organized crime may be corruption, and the links of organized crime representatives with state structures.27

Responses to organized crime General remarks Policies against organized crime in the states of East Central Europe can in the long run only be successful within the wider context of a prosperous and open society. Governments also have to ensure an appropriate (re-)distribution of goods and services; otherwise black and grey economies will emerge, and together with them organized criminal groups able to deliver them. If governments do not take measures to prevent part of the population from becoming economically, socially and culturally marginalized, some elements within the stigmatized groups – such as the Roma of East Central Europe – may organize their survival in an illegal way. Furthermore, governments need to develop a pragmatic policy on moral issues in order to contain problems such as prostitution or corruption. Policies must be directed at the containment of problems, and not at seeking radical solutions. If this is not done, the result will be either symbolic moral crusades, or else black and grey markets, organized crime and corruption scandals. Compliance with the standards of good governance is also a general prerequisite for a successful policy against corruption and organized crime. A dishonest administration is not only easy prey for organized criminal groups, but will also actively facilitate organized crime for its own ends. Unfortunately, the level of corruption is still uncomfortably high in the ECE region.28 Widely publicized ‘Clean Hands’ programmes have all, without exception, ended in failure. Finally, it is essential to establish and to maintain good relationships with the governments of neighbouring and more distant countries. Otherwise, it is almost impossible to establish and sustain effective mechanisms for mutual legal assistance and police cooperation, without which no policy against organized crime can be successful in view of its increasing internationalization.29

36

The AFSJ in the Enlarged Europe

The reconstruction of legal systems As mentioned above, crimes such as bombing, kidnappings and hostage taking were almost totally unknown before 1989, while business crimes such as racketeering and extortion did not even exist in the communist penal code. The spread of organized crime after the fall of communism called for a fundamental reshaping of legislation. As well as this, the political interests of the Central European countries in adapting their legislation and security structures to EU standards as part of the process of preparing for being part of the AFSJ played an important role in this reconstruction. In many spheres, the reconstruction would be much slower and less effective without EU pressure and assistance. As the result, a lot of legislation and structural changes mirror the West European patterns. There was a serial codification and re-codification of laws that peaked throughout the region in the second half of the 1990s. National legislatives had to deal with several common problems in their attempts to adapt the law to the new conditions on the criminal scene. Apart from establishing sanctions against new kinds of crime, they needed to establish definitions for organized crime groups and for the crimes committed by such groups, and for the crime of participation in a criminal conspiracy. They also needed to legislate for the impunity of undercover agents, ‘controlled purchases’, and the secret surveillance of the movement, storage and trafficking of objects derived from crime, since this is one of the most effective means of fighting organized trafficking in weapons, nuclear materials and drugs. Provision also had to be made for the immunity of witnesses, and for witnesses to give evidence incognito. In general, the legal systems of East Central Europe, which were used to copying Soviet models, and had adapted to the conditions prevalent in communist states, all needed to make more or less the same corrections and amendments to their legislation in order to cope with the new situation in which they found themselves. Initial legislative changes began soon after the fall of communism. They usually dealt first with the removal of politically motivated communist principles from criminal codes, and only later with the need to adapt legislation to the new circumstances created by changes in the patterns of criminal activity. The Czech Criminal Code was amended several times in the first half of the 1990s as a reaction to the threat of organized crime,

Organized Crime 37

introducing more restrictive penal sanctions for crimes committed in organized groups, and implementing new definitions of crime, for example participation in committing crimes, the illegal production and possession of nuclear materials, trafficking in children and illegal border crossing. Substantial changes in the Criminal Code, the Criminal Procedure Code and the Police Law were then adopted in 1995 by law No. 152/1995, with some further subsequent amendments. The Slovak Republic took over the Czechoslovak Penal Code of 1990 when it became an independent state in 1993. The first important re-codification was enacted in 1994 and aimed primarily to increase police efficiency in combating crime. Amendments dealt with the due process of law, rules for police action such as search warrants and other procedural matters, and also with some new kinds of crime. In 1996–97, the government coalition of Vladimír Meeiar then in power failed to amend the Penal Code as the president, a strong opponent of the government, twice vetoed the bill because of politically motivated paragraphs outlawing ‘subversion of the republic’ and ‘damaging the interests of the Republic while abroad’, which was reminiscent of communist-era language. The paragraphs became the object of sharp political battles which resulted in failure to amend the Penal Code, including the paragraphs on organized crime. The first amendment to the Penal Code was finally enacted in January 1999, after parliamentary elections in 1998 led to a change in government, and introduced the concept of witness protection in the fight against organized crime. In July 1999, the Slovak parliament passed a more wide-ranging amendment to the Penal Code designed primarily to help the police and judiciary crack down on economic and organized crime. The amendment also defined new crimes such as offering a bribe (previously only accepting a bribe was considered a crime) and possessing child pornography. The European Commission felt that there was still a need to amend the definition of some crimes, but basically the Slovak Penal Code after its large re-codification in 1999 provided a solid legal base for fighting crime.30 According to Article 166 of the Polish Criminal Code of 1932, it was a crime to be a member of an association whose main goal was to commit crime (a ‘criminal association’). The Polish Criminal Code of 1969 also defines criminal and armed associations. New penal legislation effective from September 1998, which includes the Criminal

38

The AFSJ in the Enlarged Europe

Code, the Code of Criminal Procedure and the Code of Execution of Punishments, introduced several new measures to counter organized crime that were similar to those elsewhere in East Central Europe. Some of them became subject to major disputes among experts about their compatibility with the Polish Constitution. The promise of determined action against crime played a significant role in the victory of the Fidesz–MPP Party in the Hungarian parliamentary elections of 1998. Consequently, a new bill on the ‘regulation of countermeasures against organized crime and connected phenomena’, better known as the ‘mafia bill’, was tabled in the autumn of 1998. The original bill contained various passages which would have entailed modifications to numerous laws, including laws on the police and the handling of personal data handling, and so on. Some regulations failed to come into force due to the resistance of the liberal and socialist opposition, who claimed the bill would be acceptable only in a state of emergency because of its rigour. Eventually, parts of the original bill were passed as law No. LXXV in 1999, and came into force on 1 September of the same year. The law dealt with numerous problems such as prostitution, peoplesmuggling, witness protection, undercover detectives and drug abuse. Additionally, in February 2002, Hungary adopted a substantial package of amendments to the Penal Code in order to align with the EU acquis and the UN Convention on Transnational Organized Crime. These amendments came into force in April 2002, and included a new definition of an organized criminal group; the shift of the burden of proof in cases of forfeiture of assets; the criminalization of the obstruction of justice, of bribery, and of participation in an organized criminal group; stricter provisions on trafficking in persons; and an extension of the criminal liability of foreign public officials for passive bribery.31 Security forces The security forces were also organized on the Soviet model in the all ECE countries before 1989. Although they operated within local jurisdictions, they were centrally organized and controlled by the Ministry of Interior under strong Communist Party supervision. The Czechoslovak press indicated in 1982 that 75 per cent of police force members were either members or candidate members of the Communist Party.32 In the former Czechoslovakia, the National

Organized Crime 39

Security Corps (Sbor národní bezpeenosti) comprised Public Security (Verejná bezpeenost) and State Security (Státní Bezpeenost), complemented by numerous volunteers in the Public Security Auxiliary Guards (Pomocná stráz Verejné bezpeenosti).33 Similarly, in Poland until 1990 the internal security forces of the Ministry of Internal Affairs included the regular police, called Citizens’ Militia (Milicja Obywatelska), the Security Service (Sluzba Bezpieczenstwa), and a large Citizens’ Militia Voluntary Reserve (Ochotnicza Rezerwa Milicji Obywatelskiej).The Hungarian security system was also divided into the regular National Police (Rendörség), the Security Police and auxiliary guards. These forces, together with customs corps, border troops, prison and judicial corps, military police, voluntary armed militia units and state security informers, created a repressive network with strong and effective powers of surveillance that reached every village, every workplace and every social group in society.34 After 1989, the system was destroyed. A radical reconstruction had to be carried out in a situation in which the police were confronting strong waves of organized crime sweeping across the states of East Central Europe. The first thing it was necessary to do was to depoliticize the security forces. The second problem was to make them adapt to the new conditions. This led to a high turnover of staff as many experienced police officers too closely connected to old regimes were dismissed, and young inexperienced people were recruited in their place. Like many other reforms in the transition period, practical changes took place slowly because of resistance from incumbent officials. During the first half of the 1990s in particular, action against organized crime was weakly coordinated, with various old and new agencies and security offices duplicating each others’ activities and internal ‘policemen’s wars’ eroding the fight against crime. For example, in the Czech Republic, the National Drug Information Service developed the same analytical activities as the National Anti-Drug Headquarters of the Czech Criminal Police Service.35 The most important change was made in 2001, when, in connection with the extensive reconstruction of criminal procedure, the previously autonomous police investigation offices merged with the criminal police in a new Criminal Police and Investigation Department conducting detection and investigation of crimes. Several special services focusing on organized crime have been included in this department: the Department for the Detection of Organized Crime, the National Anti-Drug Headquarters,

40

The AFSJ in the Enlarged Europe

the Financial Crime and State Protection Office and the Department for Detection of Corruption and Serious Economic Crime.36 In Poland, the Bureau for Fighting Organized Crime and the Bureau for Fighting Drug-Related Crimes both dealt with drug crime and used the same special legal measures and investigation methods. There were cases where each had its own secret agents in the same organized crime group without even knowing. In February 2000, after ten years of discussion, a decision was finally made to set up the Central Investigative Bureau. This new agency is composed of both the earlier bureaux for dealing with organized crime and drug crime. A General Inspectorate for Financial Intelligence investigating financial crime was also set up in December 2000 and is currently at the early stage of development.37 In Slovakia, similarly, special units (drugs unit, financial unit, office for the fight against organized crime) were integrated in an office of Criminal Police, and in April 2001 Hungary also established a body responsible for coordinating the fight against organized crime under the supervision of the Minister of the Interior. Its brief is to collect, analyse and process information about organized crime, to coordinate investigations, and to prevent duplication between the various departments involved. The OECD Financial Action Task Force finally removed Hungary from its list of non-cooperative countries in 2002 after a new law containing provisions for combating money laundering entered into force that allowed the Hungarian Financial Supervisory Authority to investigate money-laundering cases more efficiently.38 Furthermore, throughout East Central Europe, the fight against serious organized crime also became part of the secret services’ programmes. Although the structures of security organizations are stabilizing, the ‘policemen’s wars’ are still not over, and many difficulties remain. Because of lack of funding, there is insufficient momentum behind moves to replace and update equipment, and special tasks and development programmes adopted by the police forces are being implemented too slowly. One of the main problems is the continually high turnover the staff. A successful campaign against organized crime needs educated and dedicated police officers, and they have to be well paid. There is still a gross disproportion between the salaries of Czech police officers and their Western colleagues. Consequently, many experienced policemen retire or enter the private sector, which

Organized Crime 41

means that younger replacements have to be recruited and trained. Although the ECE states have more or less succeeded in building up special organized crime police units, there are still difficulties, especially at lower levels in their police forces. Corruption remains one of the most serious problems, particularly in police departments responsible for granting licences or other official documents. The judiciary The efficiency of the judiciary is one of the key factors in combating crime. Unfortunately, the level of law enforcement is far from satisfactory in East Central Europe. The legal process is still too slow, and lacks cost-efficiency. The Corporate Governance Risk Survey39 found that 98 per cent of respondents in the Czech Republic agreed that the legal process is not speedy enough, and only 16 per cent perceived it as cost-efficient. According to the World Bank, it takes between one and three years to obtain a judgment. Law enforcement agencies are also inefficient and not highly respected. A total of 88 per cent of respondents were convinced that there is not an effective system for reaching legal decisions, and 75 per cent thought it was not difficult to evade judgments. In Slovakia, virtually all respondents (99 per cent) agreed that legal processes are too slow, and that it takes several years to process a judgment. The same view was held by 94 per cent of respondents in Hungary, and in Poland 95 per cent of respondents reported that the legal process was too slow, and 81 per cent thought that even when decisions were taken, they were not respected and implemented. A major problem is that the judiciary is understaffed and the courts are overloaded. For example, in Slovakia the average case load is around 120–130 cases per year for every judge.40 New law graduates usually prefer to work in the private sector, where salaries are higher and the security risks lower. The courts are not experienced in dealing with organized crime, and often look at offences as individual crimes – thefts, burglaries, killings and so on – rather than as part of a larger criminal operation. In the Czech Republic, by the end of 2000, only one single offender had been sentenced under the new law covering participation in a criminal group; by the end of 2002, three offenders had been sentenced and 229 persons accused.41 Reform of the judiciary aimed at increasing its efficiency is one of the most urgent tasks that all the governments of East Central Europe need to tackle.

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International cooperation The battle against organized crime cannot be won unless there is close cooperation between the security forces throughout Europe. There is a strong link between the reshaping of domestic legislation and international collaboration, since it is often implemented only because of the pressure of international agreements that have already been signed. The Pre-accession Pact on Organized Crime between the member states of the European Union and the applicant countries of Central and Eastern Europe was signed in Brussels on 19 May 1998. A wide range of conventions and international agreements such as the UN Convention against Transnational Organized Crime, the European Convention on the Suppression of Terrorism, the European Convention on Mutual Assistance in Criminal Matters and the European Convention on Extradition have been signed, ratified or are in the process of ratification. The total harmonization will take some time, but a positive process has been started.42 In the sphere of police cooperation, Hungary signed an agreement with Europol in October 2001, and in April 2002, liaison officers were seconded to Europol. From the same month, the Centre for International Cooperation between Police Forces has been providing support for police cooperation at international level and implementation of the agreement with Europol.43 According to the European Commision’s 2002 progress reports on the candidate states, remarkable progress has been achieved in police cooperation and the fight against organized crime that will permit the Czech Republic to participate in the Europol convention. In the same year, the agreement on collaboration in fighting serious transnational crime was signed by the Minister of the Interior of the Czech Republic and director of the European Police Office. A ‘Europol’ group was established within the Czech Police, and charged with regular communication with Europol through a first liaison officer. An office for international police coordination exists within the Czech Police Presidium. Internal affairs ministers from Poland and Belgium and the chief of Europol signed an association agreement in October 2001.44 Poland’s Central Investigation Bureau is responsible for the exchange of information and cooperation with foreign law enforcement agencies as well as with Interpol and Europol. Slovakia signed an agreement with

Organized Crime 43

Europol in June 2003. The coordinating National Office of Europol was established in Bratislava in same year.45 These changes in the legal and security systems of the ECE countries established a framework for the detection, investigation and prosecution of organized crime that is more or less comparable with the legislation of the majority of other European countries, and thereby created the conditions for international cooperation in the field of justice and home affairs. The ECE states will also be able to meet European Union standards involving central national agencies dealing with organized crime. They are continuing to develop police cooperation with both neighbouring countries and old EU member states. An important framework for international cooperation has also been built up within Council of Europe/EU projects Octopus and Octopus II. Since 1999, ministers of the interior from the Czech Republic, Hungary, Poland, Austria and the Slovak Republic have been meeting regularly to coordinate activities in the sphere of migration, border defence and organized crime. Regional expert groups have been created.46 All the EU member and candidate states agreed that judicial cooperation must continue in order to ensure the implementation of Community instruments in the area of judicial cooperation in civil matters, most particularly the mutual recognition and enforcement of judicial decisions. Although visible progress has been made, effective cooperation across national borders in the areas of law enforcement and the judiciary is still developing very slowly in comparison with the explosion of organized crime that has been witnessed, aided by the many legislative and technical obstacles in East Central Europe. The weakness of the links between police forces that can be observed in the West becomes even more pronounced when they collaborate with the security forces of former communist countries, which are still frequently suspected of lacking respect for the rule of law. Unless this prejudice is overcome, and unless the police of the West and East unite their efforts to combat organized crime, the criminals will continue to win.

Conclusions Organized crime represents a serious threat for the countries of East Central Europe. Criminal groups with a high degree of organization,

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The AFSJ in the Enlarged Europe

and frequently with strong international links, are steadily expanding the scope of their operations there. Many of these groups have already passed through the stage of gaining a foothold and stabilizing their position in the underworld, and also in the economic and social structures, of the ECE states, and now aim for more elevated forms of activity, including efforts to dominate these structures. This does not bode well for the future. Far from being simply a domestic issue, the expansion of organized crime represents a direct threat to the security and stability of the EU’s new member states and, in its international dimension, for the whole of Europe. All post-communist countries joining the EU will probably be able to fulfil their obligations to the Union when it comes to restructuring their legal systems. The problem is that they still lack sufficient power to make the new legal systems work effectively in practice. One of the weakest spots of the ECE countries’ resistance to organized criminal activities (apart from an unstable economic and social situation, marked by widespread corruption and weakening of ethical standards) is their limited ability to extricate themselves from narrowly regional approaches and to grasp the international dimension of the problem. Frequently repeated political proclamations about the need to preserve ‘state sovereignty’ are a historical anachronism in a situation when the significance of state borders is in fact being undermined. In the EU–ECE context, it is necessary to build ‘sieves’ instead of erecting impenetrable barriers. In other words, security systems must be created that are capable of letting through all the positive events the world brings along while at the same trapping and eliminating negative phenomena. This is not possible without close cooperation between the security authorities of all the countries involved. However, as has been shown, this cooperation is still hampered by a whole series of legislative and operational problems.

Notes 1 Imported drugs began to appear sporadically on Czechoslovak and Hungarian territory in more considerable amounts in the second half of the 1980s because the communist regimes’ systems of control were being eroded, and more use was made of the central and northern wings of the ‘Balkan drug route’ from Southwest Asia and the Balkans to Western Europe. The central wing includes Turkey, Bulgaria, Yugoslavia, Austria, the Czech Republic and Germany, while the northern wing runs through

Organized Crime 45

2 3 4 5 6 7 8 9

10

11 12

13 14 15

16

Turkey, Bulgaria, Romania, Czechoslovakia (that is, Slovakia and the Czech Republic) and Germany. M. Nozina, Svft drog v Eechách (Prague: Koniasch Latin Press, 1997), pp. 99–100. Ibid., p. 326. M. Nozina, ‘Czech Republic: An intersection of International Crime’, Perspectives, 12 (1999), 57–64. See M. Nozina, Mezinárodní organizovany zloein v Eeské republice (Prague: Themis, 2003). Nozina, ‘An intersection of International Crime’, p. 59. Ibid., p. 60. Komenda Glówna Policji, Report statystyczny, http://www.kgp.gov.pl. Ministry of the Interior of the Czech Republic, http://www.mvcr.cz/ statistiky/krim.stat/2000; Interpol, International Crime Statistics, http:// www.interpol.int/Public/Statistics/ICS/2002.pdf. A. Michálek, ‘Vyvoj a regionálna distribúcia kriminality na Slovensku’, Kriminalistika, 33/4 (2000), 1–7, http://www.mvcr.cz/casopisy/kriminalistika/ 2000/00_04/michalek.html). Interpol, International Crime Statistics, http://www.interpol.int/Public/ Statistics/ICS/downloadList.asp. Ministry of the Interior of the Czech Republic, Zpráva o situaci v oblasti verejného porádku a vnitrní bezpeenosti na území Eeské republiky v roce 1999, http://www.mvcr.cz/dokumenty/bezp_si99/priloha1.html. Interpol, International Crime Statistics. See Nozina, Mezinárodní organizovany zloein v Eeské republice. See ibid.; M. Scheinost, ‘Názory pracovníku orgánu einnych v trestním rízení a dalsích odborníku na organizovanou trestnou einnost páchanou obcany CR’, Kriminalistika, 32/2 (1999), http://www.mvcr.cz/casopisy/ kriminalistika/1999/9902/scheinos.htm; M. Cejp, ‘Trendy ve vyvoji nfkterych ukazatelu o strukture skupin a charakteru einností organizovaného zloeinu’, Kriminalistika, 33/4 (2000), http://www.mvcr.cz/ casopisy/ kriminalistika/2000/00_04/cejp.html; M. Cejp, ‘Vysledky osmé expertizy o základních charakteristikách organizovaného zloeinu’, Kriminalistika, 34/3 (2001), http://www.mvcr.cz/casopisy/kriminalistika/2001/01_03/ cejp.html; European Committee on Crime Problems (CDPC), Report on the Organized Crime situation in Council of Europe Member States – 1999, Strasbourg, December 2000, pp. 16–17, http://www. coe.int/T/E/Legal_affairs/Legal_co_operation/Combating_economic_ crime_Organized_crime/Documents/Report1999E.pdf; Ministry of the Interior of the Czech Republic, Security Policy Section, Information on Organized Crime Status in the Czech Republic in 2000, 2. Organized Crime in the Czech Republic, http://www.mvcr.cz/english.html. A. Duleba, ‘Criminality, organized crime and corruption in the Slovak Republic: Development trends and governmental policies’, PROGRES Project, University of Groningen, Netherlands – Theme 4: Security in Europe: (New) Threats on the Agenda, Kiev, Ukraine, 24–25 March 2000 (unpublished paper).

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17 Slovensko: Základné problémy na úseku bezpeenosti, stav v roku 2001, momentálna situácia, http://www.minv.sk/dokum/bezpsit2001PZ.html; European Committee on Crime Problems (CDPC), Report on the Organized Crime Situation in Council of Europe Member States, pp. 16–17. 18 Ibid. 19 See Komenda Glówna Policji, Zwalczanie przestjpczogci zorganizowanej i narkotykowej w Polsce 2002 r. (Warsaw: 2003), p. 2. 20 European Committee on Crime Problems (CDPC), Report on the Organized Crime Situation in Council of Europe Member States, pp. 16–17. 21 See ‘2000 EU Organised Crime Situation Report’, The Hague, 31 October 2001, File number: 2530-68rev3, pp. 4–6. 22 Corruption and Organized Crime in States in Transition, Octopus project 1996–98 (joint project between the Commission of the European Communities and the Council of Europe), http://www.coe.int/T/E/ Legal_affair (Legal_co-operation/Combating_economic_crime/). 23 Corporate Government Risk Surveys measure and compare the corporate governance risk in the countries of Central Europe. The opinion surveys were conducted among 200 managers of foreign-owned companies in the Czech Republic, Hungary, Poland and Slovakia. Merit Research Working Papers, http://www.merit-research.cz/public.htm. 24 M. Nozina, ‘Das Netzwerk des internationalen organisierten Verbrechens in der Tschechischen Republik’, in R.C. Meier-Walser, G. Hirscher, K. Lange and E. Palumbo (eds), Organisierte Kriminalität: Bestandsaufnahme, transnationale Dimension, Wege der Bekämpfung (Munich: Hanns-Seidel-Stiftung eV, 1999), p. 228. 25 Ibid., p. 226. 26 See Ministry of the Interior of the Czech Republic, Actualized Concept of Fight Against Organized Crime, Prague, November 2000. 27 Ibid. 28 According to the Transparency International corruption investigation programme, Hungary gained 40th position (index 4.8), the Czech Republic 54th position (index 3.9), Slovakia 59th position (index 3.7) and Poland 64th position (index 3.6) among the 130 countries of the world. Lidové noviny, Prague, 8 October 2003. The World Bank reports that 70 per cent of Slovak firms admitted paying bribes, which on average consumed 3.5 per cent of their annual revenues. See Corporate Governance Risk Survey in Central Europe: Slovak Republic, http://merit-research.cz/files/esslk.pdf. 29 See Octopus (1998) 14 – Slovakia. Final Recommendations and Guidelines for action addressed to the government of Slovakia, Report prepared by Professor Dr C. Fijnaut, Strasbourg, 13 March 1998 (public as from February 1999, http://www.coe.int/T/E/Legal_affairs(Legal_co-operation/ Combating_economic_crime/). 30 Duleba, Criminality, organized crime and corruption in the Slovak Republic: development trends and governmental policies. 31 European Commission, ‘Regular Report on Hungary’s progress towards accession to the European Union, November 2002’, Chapter 24: cooperation

Organized Crime 47

32

33 34 35 36 37 38

39 40 41 42

43

44 45 46

in the field of justice and home affairs, COM(2002) 700 final – SEC(2002) 1404, 9 October 2002. 1Up Info – Country Study & Country Guide – Czechoslovakia, http://www. 1upinfo.com/country-guide-study/czechoslovakia/czechoslovakia141. html. There were 27,000 members organized in 3372 units in Slovakia alone in the mid-1980s. 1Up Info – Country Study & Country Guide, http://www.1upinfo.com/ country-guide-study/. Nozina, Svft drog v Eechách, pp. 285–6. The Czech Police web page, http://www.mvcr.cz/policie/index.html. Komenda Glówna Policji, http://www.kgp.gov.pl. Activities of the European Union. Summaries of Legislation. Hungary – Adoption of the Community Acquis: http://europa.eu.int/scadplus/leg/ en/lvb/e22103.htm. Corporate Government Risk Survey. Duleba, Criminality, organized crime and corruption in the Slovak Republic. Nozina, Mezinárodní organizovany zloein v Eeské republice. See: Justice and home affairs in the EU enlargement process: http://europa.eu.int/comm/justice_home/doc_centre/enlargement/doc_ enlarge_intro_en.htm. Activities of the European Union. Summaries of Legislation. Hungary – Adoption of the Community Acquis: http://europa.eu.int/scadplus/leg/ en/lvb/e22103.htm. The Warsaw Voice, 14 October 2001, No. 41 (677): http://www.warsawvoice. pl/old/v677/News03.html. Bratislava ba.mesto.sk. See http://mesto.sk/prispevky_velke/bratislava/ slovenskopodpisalo1055499960.phtml. Nozina, Mezinárodní organizovany zloein v Eeské republice.

3 Extending the Area of Freedom, Security and Justice: the Crucial Case of Poland Iwona Piórko and Monika Sie Dhian Ho1

Introduction For Poland, the largest new member of the European Union, 2004 was the beginning of a crucial period for its future development. Accession preparations had been intensive, but significant progress still had to be made on implementing and enforcing the EU acquis in full. This chapter sets forth why the EU acquis in the field of justice and home affairs ( JHA) – including the Schengen acquis as integrated into the EU framework – needs special attention in the early post-enlargement phase, and why Poland is an exceptionally important case in this respect. The chapter’s objective is to assess the costs and benefits of EU membership for Poland in the field of JHA, and to discuss the remaining challenges, as well as measures that could facilitate Poland’s further integration into the EU’s JHA/Schengen cooperation. Although accession has taken place, big challenges still remain. The Poles are not yet enjoying all the privileges of EU membership, and discussion about the consequences of accession is likely to intensify. A cost–benefit analysis of EU membership in the field of JHA is important for informing this debate in at least three ways. First, an overall picture of the short- as well as long-term effects of membership is needed, since many costs were already felt before accession, while important benefits will only materialize afterwards.2 Second, there is a widespread consensus that whereas integrating Poland into 48

The Case of Poland 49

the EU has positive effects at the macro-level, costs will be unevenly distributed. An analysis of the distributional effects of EU membership in the field of JHA may contribute to sensitivity among decision makers about where the challenges will be most demanding.3 Third, awareness of the challenges and opportunities of Polish membership in several sub-policy areas of JHA, and of their timing as well as their distribution, could allow Polish and EU decision makers to introduce supporting and compensating measures and/or to adjust their policies.

The special character of JHA in the context of EU enlargement As justice and home affairs cooperation was not brought into the EU framework until the Treaty of Maastricht, the requirements in this field took the then candidate countries more or less by surprise. Furthermore, the massive changes introduced by the Treaty of Amsterdam caused considerable uncertainty regarding accession criteria. The Treaty of Amsterdam enshrined the maintenance and development of an ‘area of freedom, security and justice’ (AFSJ) as a new, central treaty objective of the EU, that is, at the same level as for instance the Economic and Monetary Union. The EU is now committed to developing policies in the fields of visa, asylum, immigration and other policies related to free movement of persons, and to developing common action in the field of police cooperation and judicial cooperation in criminal matters. Moreover, the Treaty of Amsterdam imported a substantial body of measures that had been developed outside the Union into the EU framework: the 1985 Schengen Agreement and associated implementing acts (together called ‘the Schengen acquis’). The objective of the Schengen Agreement is the abolition of internal border controls among its member states. To compensate for the loss of internal border controls, a set of measures has been agreed among the Schengen member states in the field of external border controls, visa, asylum, immigration, police, customs and judicial cooperation, data exchange (the Schengen Information System, SIS) and data protection. All these measures are now part of the EU acquis, allowing for free movement of persons within the Union, with the exception of the United Kingdom and Ireland. These countries had to be given special

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‘flexible’ arrangements in order to gain their consent to the introduction of Schengen into the EU framework. In the accession negotiations the EU took the position that candidate countries had to accept the entire JHA acquis, including the Schengen acquis as integrated into the EU framework. Poland stated that it was prepared to accept the entire acquis, expressing reservations about accession to some JHA conventions that had not been ratified by all member states themselves. No transition periods were negotiated. This means that in principle all JHA acquis had to be implemented upon accession. This, however, does not apply to all Schengen measures. Although the Schengen acquis has been integrated into the EU system, one important rule of the Schengen Agreement has remained intact. This concerns the rule that a new member has to go through a period of close monitoring of implementation of Schengen obligations (the Schengen evaluation process) after its accession to Schengen (now the EU). Moreover, a new member has to await a separate and unanimous decision of the Schengen Executive Committee (now the Council of the European Union) before it can fully participate in the Schengen acquis and most notably before internal border controls can be lifted. Thus Austria, Italy, Greece and the Nordic countries had to wait several years after their accession to Schengen before this decision was taken. Analogously, internal border controls have not been lifted on Poland’s accession to the EU, and checks at the German–Polish frontier continue to take place. Because internal border controls remain intact, the entire Schengen acquis did not have to be implemented upon accession either. The Council of the EU has published an ‘Information note’ on Schengen and enlargement, making a distinction between the requirements that had to be implemented upon accession to the EU and those that are to be implemented on the lifting of internal border controls at the latest.4 Moreover, the Council has announced that the implementation of Schengen does not contain a predetermined timetable for the abolition of checks on internal borders after accession. In the absence of target dates for Poland’s full participation in Schengen, there are widely divergent expectations of what will happen.5 The implication of this two-stage procedure is that not all costs and benefits of EU membership in the field of JHA will materialize upon accession, but at a later, not yet definable, stage.

The Case of Poland 51

The special case of Polish accession in the field of JHA There are several reasons why Poland’s accession to the EU in the field of justice and home affairs is exceptionally important. First, Polish EU membership means that its borders with Russia (the Kaliningrad enclave), Belarus and Ukraine become part of the EU’s external border. At 1143 km in length, this constitutes the second longest land border guarded by a single member state.6 If any neighbouring new member states do not enter the Schengen zone at the same time as Poland, then the length of the external border it has to control will be even longer. For example, Poland’s border with Slovakia is 533 km in length. Second, the transformation of the political system at the end of the 1980s brought a profound change in the migration situation in the countries of Central and Eastern Europe, including Poland. Until 1989 Poland had been a typical emigration country. Between 1971 and 1989 over 2 million people permanently left their homeland.7 At the same time immigration was ‘marginal and exotic’8 and the number of foreigners visiting Poland was limited to only several million persons per year. In this respect, the beginning of the 1990s constituted a genuine breakthrough. The democratic reform led to the opening of borders in the region and to the removal of many entry restrictions for visitors. The number of foreigners entering Polish territory rose to reach 80 million in 1996.9 In the course of a decade not only the temporary presence of foreign visitors but also permanent immigration had become a characteristic feature of the new social reality. Additionally, some illegal phenomena were linked to the new situation in the migration field. Between 1990 and 1997, a turning point in Polish migration policy when the Act on Aliens was adopted, as many as 120,000 illegal immigrants were apprehended in Poland.10 Initially they came from Bulgaria, Romania, Russia and Ukraine, and at a later stage from Asian and African countries. Poland turned into an immigration and transit country and the Polish authorities were suddenly confronted with developments that had previously been unknown. Third, whereas border and immigration controls do not result exclusively from EU accession, the introduction of the EU visa regime is very much linked with this process. The abolition of internal border controls within the Schengen context has made it necessary to

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harmonize the visa policies of the member states. This harmonization primarily involves the lists of countries whose nationals need entry visas (the negative list) and whose nationals do not need them (the positive list). Three of Poland’s neighbouring countries, namely Belarus, Russia and Ukraine, are currently on the negative list.11

Opportunities for Poland Poland’s accession to the EU will significantly contribute to the achievement of Polish justice and home affairs objectives, such as free movement of persons, better access to justice and enhanced internal security. It also indirectly supports Polish economic objectives, for example creating a better climate for investment by reducing corruption. Five processes linked with EU accession will further these Polish policy objectives. These are: (1) creating and strengthening the legal framework and sound institutions; (2) staffing, training and equipment; (3) improvement of inter-institutional cooperation; (4) coherent strategic policy making; and (5) integrating Poland into the AFSJ, EU institutions, cooperation structures and monitoring systems. The first three processes may in part have taken place independently of EU accession, for example as part of the transformation process or adjustments to globalization. It is important to realize, however, that EU accession has in many cases put JHA issues firmly on the Polish policy agenda, whereas globalization and economic liberalization initially led to a reduction in Poland’s internal security.12 All five accession-linked processes that contributed to the achievement of Polish objectives will be dealt with below. First, the need to fulfil EU requirements as well as the EU’s monitoring of progress furthered the creation, and strengthening, of the legal framework and of sound, efficient institutions. The introduction and consolidation of uniform norms and rules reduced uncertainty and arbitrary decision making. Such developments can be observed in all JHA sub-policy areas. The early foundations of a modern border control system were laid shortly after the change of political regime by two laws which, among other measures, replaced the Border Protection Army by the newly created Border Guard.13 However, farreaching changes were introduced by the 2001 amendments to these acts which were inspired by the accession process.14 These changes involved broadening the competencies of the Border Guard (for

The Case of Poland 53

example, so that it could operate throughout the country) and making it more effective in border protection, border traffic control and fighting border-related crime.15 They also involved the adoption of important EU requirements, such as uniform level of checks at external borders carried out in accordance with uniform principles, and an internal control system. Both reduce arbitrary decision making by border guards. In the fields of visas, migration and asylum, the accession process also supports institution building. In order to implement the EU visa regime, Poland’s network of diplomatic missions and consular offices is being strengthened. The Act on Aliens adopted in 1997 and amended in 2001 has introduced a legal framework for the area of immigration and asylum and created the Office for Repatriation and Aliens, which is the central agency with responsibility for aliens.16 This legal framework, combined with the centralization of decision making in a single government department, is contributing to the development of a more coherent and comprehensive migration policy, as well as to fair and faster procedures for dealing with asylum applications. EU monitoring has played a substantial role in placing and keeping immigration and asylum policies high on the Polish agenda, such as in 2001, when the Polish government was seriously considering dismantling the then six-months-old Office for Repatriation and Aliens as part of a broader restructuring of the Polish administrative system.17 The fight against organized crime, drugs, fraud and corruption, and the protection of data, also benefit from accession-driven institution building. Examples of this are the creation of the National Centre for Criminal Information,18 the Inspectorate General for Financial Information,19 the Inspectorate General for Personal Data Protection20 and the Council for the Prevention of Drug Addiction.21 More generally, EU standards support the development of an accountable and reliable police organization and customs authorities. EU insistence on anti-corruption measures has encouraged Polish anticorruption policies, such as the introduction of the liability of legal persons,22 and codes of ethics and strong internal control systems. Appropriate sanctions against corruption in the judiciary, for example removal of the unlimited penal immunity for magistrates, might help restore a feeling of justice in society at large. The same applies to measures to make the Public Prosecutor’s Office fully independent

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of government. EU accession requirements have also supported respect for human rights and fundamental freedoms and the development of an independent, reliable and efficient judiciary. The latter involves, among other things, a reduction in the number of cases pending and of the duration of court proceedings (for example, by introducing simpler procedures), and better access to justice and enforcement of judgments. The second advantage of EU accession lies in the improvement of staffing, training and equipment, which makes a substantial contribution to the achievement of Polish policy objectives. As a result of the deployment of professional border guards, all persons crossing the external borders are checked systematically, and border surveillance between border-crossing points has become more effective. Recruitment of qualified law-enforcement personnel makes a difference in the fight against organized crime, drugs, fraud, corruption and terrorism, and has helped to diminish delays in courts. All these policy objectives are also served by staff training in operational skills, knowledge of legislation and languages, and by the development of infrastructure and the acquisition of equipment such as computer systems that are needed for EU membership. The third beneficial effect of EU accession concerns improvements in cooperation and the exchange of information between authorities. EU accession requires, for instance, bilateral and international border cooperation, cooperation between authorities controlling each side of the border, intensive consular cooperation, collaboration between customs authorities and the Border Guard, and cooperation between the police and prosecuting and judicial bodies. By way of example, cooperation between the Polish Border Guard and Germany’s Federal Border Guard has been particularly effective.23 The fourth beneficial effect of EU accession is that it encourages coherent strategic policy making. Policies in many sub-areas of JHA needed to start from scratch after the fall of communism. EU accession preparations have led to the development of strategic policies such as the Strategy of Integrated Border Management, the Anti-Corruption Strategy, the Drugs Strategy, and recent work on migration policy, and have contributed to their coherence and comprehensiveness, for example through the addition of measures on family reunification in the 2001 amendment of the Act on Aliens. Policies in the field of migration and integration are all the more necessary because EU

The Case of Poland 55

accession will make Poland more attractive for immigrants. Where the Polish labour market and social security system might need considerable foreign labour in the future, increased immigration can be considered a benefit. Moreover, the opening up of Polish society to new cultural influences may also bring advantages.24 However, in order to ensure these benefits from immigration, a coherent strategic immigration and integration policy is essential. Last but not least, enormous opportunities result from Poland’s integration into the AFSJ, EU institutions, structures of cooperation, and permanent monitoring systems. As EU citizens, the Polish should benefit from increased internal security, better access to justice and, once the Council decision to lift internal border controls has been taken, from unhindered travel across borders. Moreover, through accession to the EU, Poland has acquired full decision-making rights. This also applies to the development or reform of the Schengen acquis as integrated into the EU framework. Poland is thus able to launch initiatives to deepen cooperation, for example on harmonizing border control standards or promoting burden sharing or a structural fund in the field of JHA, and to make proposals for reform of existing policies, such as the visa regime or policies vis-à-vis the EU’s Eastern neighbours. If any other initiatives do not appear to be in Poland’s interest, its government can try to influence fellow member states not to adopt them, or in the last resort it can block them.25 EU membership may also strengthen Poland’s position as a regional actor as its Eastern neighbours will be aware of Poland’s ability to influence JHA policies. Furthermore, accession has made Poland part of the EU’s cooperation structures. Exchange of information and experience, the use of common methods and tools, participation in institutions such as Europol and Eurojust, and becoming a member of networks such as the European Judicial Network are likely to support the Polish fight against organized crime, drugs, terrorism, fraud and corruption. Access to the information held in the Schengen Information System, which Poland will obtain only after SIS II has been developed and the Council has decided to lift internal border controls, deserves special mention in this regard. Inclusion in the permanent monitoring systems of the EU will foster commitment to the objectives of the AFSJ. Finally, accession has provided Poland with access to funds reserved for EU members.

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Challenges for Poland Compliance with the requirements of EU membership in the field of justice and home affairs also entails substantial financial, socioeconomic and socio-political challenges for Poland. When analysing these challenges it is again important to keep in mind that not all of them result exclusively from EU accession. For example, the judicial reform required by the EU would have had to be undertaken anyway as part of the autonomous Polish transformation process. However, some measures are very closely linked to EU membership, such as the introduction of the EU visa regime and the highly contested implementation of some conventions, such as the 1995 agreement on illicit traffic by sea. The financial challenge of EU membership for Poland is considerable in the field of JHA as a consequence of the high implementation costs of the JHA acquis. A striking example of this is fulfilling EU requirements in the field of border controls, which entails big investments in staff and training. It is estimated that a modern Polish border control system requires 18,000 officers.26 Bringing the Border Guard up to full strength means hiring new officers, replacing conscripts by professionals and training all personnel. Moreover, massive investment is needed in infrastructure, such as border stations and equipment, such as that required for observation and transport and, most importantly, communication and information technology. The total cost of border controls for the 2003–05 period has been estimated at around 257 million euros.27 EU financial assistance in this field was initially expected to amount to 94 million euros. Given the impressive gap between these two figures and Poland’s very tight budgetary situation, extra funds for external border controls were part of the final demands that Poland put forward at the end of the accession negotiations at the European Council in Copenhagen in December 2002. The perceived self-interest of the incumbent member states in strengthening the future external border of the EU may have contributed to their eventual willingness to grant an additional 108 million euros for controlling Poland’s eastern border. However, despite this grant, funding will remain a serious Polish concern. Visa policy is another sphere where implementing the EU system presents Poland with a substantial financial challenge. The introduction of visa requirements for citizens of countries with which Poland

The Case of Poland 57

previously had a visa-free regime is likely to result in a large increase in the number of visas issued. It has been estimated that it will rise to 3.5 million annually (from approximately 230,000).28 To deal with this increase, large investments are being made to strengthen Polish consular offices in both organizational and logistical terms, and to provide them with the necessary staff and equipment, including visaprocessing information technology. Further substantial budgetary allocations will be needed to implement the EU acquis in other JHA areas. These involve funds for the asylum field, where data transmission equipment is needed for the fingerprint database Eurodac, and reception centres for asylum-seekers. Similarly, police and judicial cooperation requires the national interface for SIS II as well as the training of magistrates, judges and prosecutors. Apart from financial problems, Poland also faces socio-economic challenges. These result mainly from the obligation to introduce visas for citizens of 13 countries whose citizens were previously visafree. The most difficult cases are Ukraine, Russia and Belarus, where Poland also had to terminate a 1985 agreement with the then Soviet Union on local simplified border crossings. During the three first months after the EU visa regime was introduced, the Polish consulates in Russia, Ukraine and Belarus issued nearly 280,000 visas: almost 140,000 for Ukrainian citizens, 80,000 for Belarusians, and 60,000 for Russians.29 The application of these EU measures has a social price. Terminating the agreement on local simplified border crossings means, for instance, that visiting relatives across the border becomes more complicated.30 There will also be economic effects resulting from the inevitable decrease in trade with eastern neighbouring countries. At a macro-level these are expected to be limited as the Eastern market is relatively small in scale compared to the EU market, which is a natural field of expansion for Polish exports.31 Registered Polish trade with eastern neighbours – which is the greater part – is unlikely to be affected by modern border management and clear and simple visa procedures. This expectation is supported by the Slovak case. Although the Slovak introduction of visas for Ukrainians resulted in a significant drop in border crossings,32 it was followed by a quite impressive growth of freight trains crossing the border.33 However, it is predicted that non-registered trade will be affected significantly, as the Slovak example also indicates. Following the

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introduction of the visa regime, a relatively large drop in the number of border crossings of buses and cars (the means of transportation most commonly used by petty traders) was noted.34 Economists point out, though, that the importance of unregistered trade for the Polish economy has anyway decreased over the last years. Petty trade is seen as a temporary phenomenon, as it is largely based on differences in product prices on the Polish and more eastern markets. Moreover, part of this trade involves the evasion of duties on alcohol and cigarettes, which makes it detrimental for the Polish budget.35 Nevertheless, specific regions and sectors will suffer seriously from the drying up of petty trade. This concerns the underdeveloped eastern voivodships (counties) and sectors such as the small-scale textile industry in Lódx that are highly dependent on unregistered trade with eastern neighbours. Accession-related benefits for these regions,36 such as the receipt of structural funds, investment in infrastructure and the employment of local people for the purpose of strengthening border controls, are unlikely to compensate for the loss of employment and sources of income in these regions. That said, the shift from Eastern to Western export markets as well as the decline of petty trade are trends that cannot be attributed entirely to EU accession since painful regional adjustments to globalization were taking place anyway. Finally, EU accession will have a socio-political price. This concerns, first, the loss of autonomy in policy making that EU membership implies. The obligation to adopt and implement the entire acquis means that Poland is confined in setting its own policy priorities. For example, it is forced to focus on security-related matters and to finance high investment in JHA instead of in other sectors. An example of this unbalanced pressure is the EU’s preoccupation with fortifying the eastern border, while far less attention is paid to the reform of the judiciary.37 The EU visa regime is another example where the political implications of the loss in policy autonomy are felt. The introduction of the visa regime is likely to disturb relations and historical ties with neighbouring countries, as well as with the Polish minorities that live there. The introduction of visa requirements is getting a frosty reception from both governments and citizens in Poland’s neighbouring countries. For example, it prompted President Kuchma of Ukraine to comment that the EU is replacing the iron curtain with a paper one,

The Case of Poland 59

or, in the words of President Putin, a ‘new Schengen wall’.38 Russia and Belarus have, as feared, reciprocated and introduced visas for Poles, while Ukraine has accepted the Polish proposal whereby no visas are required for Polish citizens in return for visas being issued to Ukrainian citizens free of charge. Furthermore, in some cases Poland’s ability to negotiate visa-free travel for Polish citizens has been weakened as Poland was obliged to abolish visa obligations for certain countries as part of the EU visa regime. EU citizens could travel without visas to countries such as Australia and Canada, while Polish citizens could not. In consequence of the obligation to adopt the EU visa regime, Poland can no longer use visa-free travel to Poland as a negotiation tool to get visa-free travel to these countries for Polish citizens in exchange. However, in theory Poland will now be able to make use of the so-called solidarity clause to start discussions in the Council in cases where there is an imbalance between EU visa regulations and the visa policy of some third countries vis-à-vis EU member states.39 Indeed, the Commission is now examining the visa relations of EU members with third countries and in that context it will look at the visa situation of new member states in relation to the USA, Australia and Canada.40 Apart from the loss of policy autonomy, there will be direct social challenges in the field of JHA resulting from accession. Immigration pressure is likely to increase, and the transformation of Poland from a transit to a destination country will continue. The same holds true for asylum-seekers, with refugees increasingly deciding to stay in Poland at least until a decision on their status has been made.41 Moreover, as a result of the implementation of the Dublin Convention on the State Responsible for the Examination of an Asylum Claim, Poland will most probably have to deal with an even higher number of asylum-seekers. All this makes proper immigration, asylum and integration policies a necessity, to deal for example with the large Vietnamese community and the growing number of asylum-seekers from Chechnya.

Conclusion Weighing opportunities and challenges against one another, we can conclude that difficult times are ahead for Poland in the sphere of justice and home affairs. One reason is the high cost of fulfilling EU

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requirements, especially in certain regions and sectors. Another reason is the timing of costs and benefits. The majority of the costs have to be borne ‘in advance’. This holds true for the substantial financial costs of implementing the JHA acquis, as well as for the socioeconomic and political costs. However, whereas some benefits are already identifiable, increasing security, fighting corruption and reforming the judiciary are long-term processes, the full benefits of which will not be felt today or tomorrow. Moreover, very tangible benefits of EU membership, such as border-free travel and access to the data of the Schengen Information System, will only materialize when the Council considers Poland ready to fully participate in the Schengen cooperation. Clearly, the costs and benefits of accession, and their timing, depend strongly on policies pursued by the EU, Poland and other states. The realization of many benefits for Poland is directly connected to the EU decision to abolish checks on internal borders. The Polish commitment to implementing the Schengen acquis in full, as well as its capacity to do so, will obviously be of great influence too. The commitment and capacity of Poland’s neighbouring countries, such as Slovakia, will also play an important role. If the new member states are not ready at the same time, some may have to wait for others, or temporary external borders will have to be introduced. Substantial financial assistance from the EU will have to continue to contribute to the strengthening of administrative capacity in Poland. Extra money for border controls was negotiated at the Copenhagen European Council in December 2002, and the postaccession Transition facility and Schengen facility announced in the Accession Treaty will run until the end of 2006.42 With respect to the EU visa policy, Poland is trying to alleviate the social, economic and political costs discussed above by offering visas free of charge to Ukrainian citizens in exchange for the continuation of visa-free access to Ukraine for Polish citizens. These measures – although understandable from a political perspective – will, however, only provide temporary relief since permanent exemptions from the Schengen acquis are not an option for the new member states. The outcome of the Intergovernmental Conference on a constitutional treaty for the European Union and the development of future policies will also influence the effects of EU accession for Poland. The principle of solidarity, with fair sharing of responsibility and

The Case of Poland 61

financial burdens, a specific evaluation mechanism for the AFSJ, and an article on border controls, are examples of key provisions in the draft constitution (see Chapter 7) that greatly influence the costs and benefits of Poland’s integration into the AFSJ. Poland is also taking on a more active role in influencing the development of EU policies. It has put itself forward very strongly as the seat of the new European agency for the management of the operational cooperation at external borders. The determination of minimum common standards for arrangements for local border traffic is another example where Poland can influence the development of the EU framework so that the negative impact of EU visa policies on social and cultural exchanges with neighbouring countries, and on economic development in border regions, will be weakened. Clearly, to make a success of enlargement, the EU will need to approach institutional reform and the development of the Schengen acquis from the perspective of an AFSJ of 25 member states.

Notes 1

2

3 4

5

6

This chapter is based on I. Piórko’s Ph.D. thesis, forthcoming at the Sussex European Institute, University of Sussex, Brighton, UK, and research conducted by I. Piórko and M. Sie Dhian Ho in the context of the Natolin European Centre project, Costs and Benefits of Poland’s Membership in the European Union (Warsaw: Natolin European Centre, 2003). H. Tang, ‘Overview’, in H. Tang (ed.), Winners and Losers of EU Integration. Policy Issues for Central and Eastern Europe (Washington: The International Bank for Reconstruction and Development/The World Bank, 2000), pp. 1–12. A. Inotai, ‘The Czech Republic, Hungary, Poland, the Slovak Republic and Slovenia’, in Tang, Winners and Losers of EU Integration, p. 19. Council of the European Union, ‘Information Note, Schengen and Enlargement’, Chapter 24: Cooperation in the Fields of Justice and Home Affairs, 10876/01 Limite Elarg 172 (2001). For instance, Józef Oleksy, Minister of Interior and Administration, has stated repeatedly that Poland aims to enter the Schengen zone two years after accession (Polish Press Agency, 12 February 2004), whereas Udo Hansen, President of German Grenzschutzpräsidium Ost, has estimated that achieving full Schengen participation will take the candidates at least ten years (statement at the CEPS conference ‘New European Borders and Security Cooperation: Promoting Trust in an enlarged European Union’, Brussels, 6–7 July 2001). The length of Poland’s border with Russia is 210 km, with Belarus 407 km and with Ukraine 526 km. The longest land border guarded by a single member state is Finland’s 1324 km border with Russia.

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7 P. Stachanczyk, Cudzoziemcy (Warsaw: Wydawnictwo Zrzeszenia Prawników Polskich, 1998), p. 9. 8 S. Lodzinski, Problemy polityki migracyjnej Polski w latach 1989–1998 (czerwiec) a nowa ustawa o cudzoziemcach (Warsaw: Biuro Studiów i Ekspertyz Kancelarii Sejmu, 1998), p. 1. 9 Stachanczyk, Cudzoziemcy, p. 9. 10 Lodzinski, Problemy polityki mygracyjnej Polski w latach 1989–1998, p. 23. 11 See Council Regulation (EC) 539/2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders of member states, and those whose nationals are exempt from that requirement, Official Journal of the European Communities, L 81/1, 2001, as amended by Council Regulation (EC) 2414/2001, OJ L 327/1. 12 Inotai, ‘The Czech Republic, Hungary, Poland, the Slovak Republic, and Slovenia’, p. 22. 13 Act of 12 October 1990 on Border Guard, Ustawa z dnia 12 paxdziernika 1990 r. o Strawy Granicznej, Dziennik Ustaw (Official Journal) (1990), no. 78, item 462. Act of 12 October 1990 on State Border Protection, Ustawa z dnia 12 paxdziernika 1990 r. o ochronie granicy panstwowej, Dziennik Ustaw (Official Journal) (1990), no. 78, item 461. 14 See the Act of 11 April 2001 on change of the Act on Border Guard and on change of some other acts, Ustawa z dnia 11 kwietnia 2001 r. o zmianie ustawy o Strawy Granicznej oraz o zmianie niektórych innych ustaw, Dziennik Ustaw (Official Journal) (2001), no. 45, item 498. Another amendment of the Act on Border Guard is under preparation (see the web page of the Polish border guard headquarters www.sg.gov.pl). 15 M. Adamczyk, ‘Border Guard of the Republic of Poland. Modern European Border Force’ (Warsaw: International Cooperation and European Integration Bureau of the Border Guard Headquarters, unpublished paper, 2002), pp. 30–31. 16 Act on Aliens, of 25 June 1997, Ustawa z dnia 25 czerwca 1997 r. o cudzoziemcach, Dziennik Ustaw (Official Journal) (1997), no. 114, item 739. Amendment to the Act on Aliens, Ustawa z dnia 11 kwietnia 2001 r. o zmianie ustawy o cudzoziemcach oraz o zmianie niektórych ustaw, Dziennik Ustaw (Official Journal) (2001), no. 42, item 475. In June 2003 a new Act on Aliens was passed by parliament, Ustawa z dnia 13 czerwca 2003 r. o cudzoziemcach, Dziennik Ustaw (Official Journal) (2003), no. 128, item 1175. 17 European Commission, ‘Regular Report on Poland’s progress towards accession to the European Union’, COM(2002) 700 final – SEC(2002) 1408, 9.10.2002, p. 115. 18 The National Centre for Criminal Information is supposed to become the national interface for SIS II. Act of 6 July 2001, Ustawa z dnia 6 lipca 2001 r. o gromadzeniu, przetwarzaniu i przekazywaniu informacji kryminalnych, Dziennik Ustaw (Official Journal) (2001), no. 110, item 1189. 19 Act of 16 November 2000, Ustawa z dnia 16 listopada 2000 r. o przeciwdzialaniu wprowadzaniu do obrotu finansowego wartogci majhtkowych

The Case of Poland 63

20

21

22

23 24 25

26

27

28 29

30

31

32 33

pochodzhcych z nielegalnych lub nieujawnionych xrodel, Dziennik Ustaw (Official Journal) (2000), no. 116, item 1216 as amended. Act of 29 August 1997, Ustawa z dnia 29 sierpnia 1997 r. o ochronie danych osobowych, Dziennik Ustaw (Official Journal) (1997), no. 133, item 883 as amended. Regulation of the President of the Council of Ministers of 6 March 2001, Rozporzhdzenie Prezesa Rady Ministrów z dnia 6 marca 2001 r. w sprawie okreglenia skladu i zadan Rady do Spraw Przeciwdzialania Narkomanii oraz szczególowych warunków i trybu jej dzialania, Dziennik Ustaw (Official Journal) (2001), no. 17, item 188. Act of 28 October 2002, Ustawa z dnia 28 paxdziernika 2002 r. o odpowiedzialnogci podmiotów zbiorowych za czyny zabronione pod groxbh kary, Dziennik Ustaw (Official Journal) (2002), no. 197, item 1661. See Adamczyk, Border Guard of the Republic of Poland. K. Iglicka, ‘Migration Movements from and into Poland in the Light of East–West European Migration’, International Migration, 39/1 (2001), 3–32. In the present situation almost all decision making in the field of JHA is governed by unanimity. According to the Treaty of Amsterdam, in 2004 the Council can make a unanimous decision to introduce qualified majority voting for all or part of EU policy making in the fields of visas, asylum, immigration, and other measures related to free movement of persons. Ministry of Interior and Administration, Poland’s Strategy of Integrated Border Management (Warsaw: Ministerstwo Spraw Wewnjtrznych i Administracji, 2000), p. 142. Ministry of Interior and Administration, Strategia zintegrowanego zarzhdzania granich w latach 2003–2005 (Warsaw: Ministerstwo Spraw Wewnjtrznych i Administracji, 2002), p. 108. Ibid., p. 29. Polish Press Agency, 9 December 2003. Although visas were formally introduced on 1 October 2003, Polish consulates started issuing them from 1 September. J. Skolimowski, Director of the Consular and the Polish Communities Abroad, Department of the Ministry of Foreign Affairs, has stated that the number of border crossings in the framework of the simplified border traffic amounted to 23,400 between Poland and Belarus and 15,200 between Poland and Ukraine in 2001. Speech at the conference ‘The European Union and its Future Neighbours – How Much Freedom, How Much Security?’, Centre of International Relations, Warsaw, 6 and 7 December 2002. W.M. Orlowski, ‘Konsekwencje ekonomiczne Schengen’, in Institute of Public Affairs (ed.), Polska droga do Schengen – Opinie ekspertów (Warsaw: Instytut Spraw Publicznych, 2001), p. 97. The drop was mainly in the number of Ukrainians coming to Slovakia from 1.7 million persons in 1998 down to 0.3 million in 2001. A. Duleba, ‘Effects of visa regime on legal and illegal migration through the Slovak–Ukrainian border’, paper presented at the conference ‘EU

64

34 35 36

37

38 39 40 41 42

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Governance and the Challenge of Internal Security’ (Leicester, 20–21 September 2002). Ibid., pp. 2–3. Orlowski, ‘Konsekwencje ekonomiczne Schengen’, p. 101. Council of Ministers, Raport w sprawie korzygci i kosztów integracji Rzeczypospolitej Polskiej z Unih Europejskh (Warsaw: Rada Ministrów, 2000), p. 110. See for instance Chapter 24 on Justice and Home Affairs in European Commission, ‘Comprehensive monitoring report on Poland’s preparations for membership’, Brussels, October 2003. Polish Press Agency, 4 February 2004. Article 1, paragraph 4 of the visa list regulation 539/2001. Polish Press Agency, 23 January 2004. European Commission, ‘Comprehensive monitoring report’, p. 116. Under the Schengen facility 300 million euros per year will be available for the seven new member states who will be responsible for controlling the EU’s future external border. See Article 35 of the Accession Treaty, Official Journal of the European Communities, L 236, 2003.

4 The Implications of Schengen Visa Policy for the Visegrad States: The Case of Slovakia Alexander Duleba

Introduction This chapter will examine the impact of implementing the Schengen visa policy on the eastern borders of the new European Union. As a case study, it looks at patterns of legal and illegal crossings at the Slovak–Ukrainian border, which was to become an external border of an enlarged EU after 1 May 2004. The Slovak–Ukrainian border has been chosen for this research because it is important in comparative terms. It has been subject to a visa regime since June 2000, at which point the borders between Hungary and Ukraine, and Poland and Ukraine, still enjoyed a visa-free regime. Assessing the data collected on the situation at the Slovak–Ukrainian border therefore offers an indication of how future Schengen arrangements will affect Slovakia’s Visegrad neighbours in the enlarged EU. It also suggests some ways of dealing with the potential consequences of such arrangements. The analysis begins by looking at the changes made to Slovakia’s legislation on its border regime and visa policy in preparation for enlargement. It examines the effects of Slovak government policy as well as bilateral arrangements between Slovakia and Ukraine on their common section of border, with a special focus on legal and illegal migration and protecting the border. Apart from looking at the legislative and policy framework, the chapter will evaluate the impact 65

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of the visa regime on Slovak–Ukrainian relations and on the legal movement of persons, transport links and tourism, as well as border crime, illegal migration, crime committed by Ukrainians on Slovak territory, and also labour migration.

The impact of EU accession on Slovakia’s border regime with Ukraine The border regime before 1999 Slovakia’s accession to the EU was the key factor which led to fundamental changes in the Slovak–Ukrainian border regime. Adopting EU legislation and bringing Slovakia’s administrative capacity and border infrastructure up to EU standards caused considerable interference to the bilateral border arrangements between Slovakia and Ukraine established at the beginning of the 1990s. In fact, this was the second major change of the Slovak–Ukrainian border regime in the last decade. The first shift resulted from the dramatic geopolitical shake-up in the former communist bloc at the beginning of 1990s, when the countries of which Ukraine and Slovakia were part – the Soviet Union and Czechoslovakia – disappeared from the political map of Europe. In 1993, when Slovakia gained its independence, the former Czechoslovak–Soviet border established in the aftermath of the Second World War finally became the modern Slovak–Ukrainian border, after a short interval in 1992 when it was the border between Czechoslovakia and Ukraine. Historically, there had been no state border between the territory of modern Slovakia and the Transcarpathian Region of Ukraine. Both Slovakia and Transcarpathia (the historical name of the region is ‘Subcarpathia’) were parts of the same state formations for more than a thousand years: the Greater Moravian Empire, the Kingdom of Hungary, the Habsburg Monarchy, Austria-Hungary and finally the first Czechoslovak Republic. It was only in 1946 that Czechoslovakia ceded its former eastern province of Subcarpatian Rus to the Soviet Union following an intergovernmental treaty.1 In June 1993, the heads of state of Slovakia and Ukraine signed a Basic Treaty in Kyiv which recognized the common state border that both countries had inherited from their predecessor states, and in October 1993, the two new states signed a package of three ‘border treaties’.2 In fact, the treaties left unchanged the technical provisions

Schengen Visa Policy in Slovakia 67

for Ukrainian and Slovak citizens crossing the common border that had been established by a 1981 agreement between the Soviet Union and Czechoslovakia.3 There was no visa requirement, but the new regime imposed a set of regulatory measures, and in order to cross the border, citizens of both countries needed an official invitation from the other country authorized by the police authorities or a tourist voucher for which they paid a (largely symbolic) charge. In the case of business trips, a special stamp in the passport authorized the bearer to cross the border without any fee or limit to the number of annual crossings. The border police also had the power to issue a stamp in the passport of an employee of a corporate body, provided that it was able to document its collaboration with a partner in the other country. Given the communist past, when citizens’ access to travel documents allowing them to go abroad was under strict political control and managed by the police, the new travel regime imposed on the Slovak–Ukrainian border in 1993 was generally perceived in Ukraine and Slovakia as an intrinsic part of the individual freedom they enjoyed under the new post-communist period.4 It was not so different from communist times in terms of procedures at the bordercrossing point, but it was dramatically different when it came to citizens’ right to travel abroad and their access to travel documents. Moreover, in the mid-1990s both sides intended to liberalize the border regime even further. In February 1995 the Slovak government led by the then prime minister Vladimír Meeiar signed an agreement on non-visa travel with the Russian Federation, which abolished any regulatory measures such as tourist vouchers and official invitations for citizens of Slovakia and Russia provided that their stay in the other country did not exceed 30 days. An identical agreement was concluded with Belarus in September 1995,5 and the Meeiar government was planning to sign a similar non-visa agreement with Ukraine. However, this never actually happened because in March 1995, the Implementation Convention of the Schengen Treaty had come into force, and in June 1995 Slovakia submitted its official application for EU membership. In September 1997, the Dublin Convention of 1990 also came into force, and through the Common Consular Instruction it created the EU’s negative list of the countries whose citizens needed a visa in order to cross the border of an EU member state. Russia, Belarus and Ukraine were on the list of the EU visa countries.

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The EU December 1997 summit in Luxembourg invited the first group of post-communist candidate countries, including Slovakia’s three Visegrad neighbours, to start accession talks. Among other requirements, they had to adjust their domestic legislation and treaties with third parties to EU standards, including those in the field of justice and home affairs. Slovakia had at this point been excluded from the frontrunners for joining the EU. However, the reason for excluding Slovakia was not any reluctance on Slovakia’s part to follow EU standards in issues such as the Schengen acquis, but primarily the undemocratic style of ruling of the Meeiar government.6 Although the government had not withdrawn from the 1995 visa-free agreements with Russia and Belarus, it was sensitive to EU requirements in this area and it did not sign any further such agreements with countries on the EU’s negative visa list, including Ukraine. The next Slovak government, led by Mikulás Dzurinda, came to power after the September 1998 election, and made it clear that it considered NATO and EU membership priorities for Slovak foreign policy, and that it was prepared to subordinate domestic policies and external relations to achieving this aim.7 The Dzurinda government thereby succeeded in improving the country’s international position, including relations with the European Union. Adapting visa policy to the EU acquis The EU invited Slovakia to start detailed negotiations at the Helsinki summit of December 1999, and Slovakia presented its general negotiating position at the first meeting of the EU–Slovakia accession conference on 15 February 2000. The EU opened the first chapters of the accession talks with Slovakia during the Portuguese presidency in the first half of 2000, and the last of the 31 chapters was closed during the Danish presidency in the second half of 2002.8 Slovakia therefore managed to catch up with its Visegrad neighbours even though it started negotiations two years later. After signing the Accession Treaty in April 2003 and holding a successful referendum the following month, Slovakia joined the EU together with nine other states on 1 May 2004. Since the Amsterdam Treaty, which came into force in 1999, had incorporated the Schengen protocol into the EU legislative framework, the Schengen acquis were included in Chapter 24 of the accession negotiations, which dealt with cooperation in the field of justice

Schengen Visa Policy in Slovakia 69

and home affairs. The Slovak Republic submitted its negotiating position on Chapter 24 to the EU in December 2000,9 the EU adopted its common negotiating position towards Slovakia in June 2001, and Chapter 24 was opened at the end of the Swedish presidency later that month. Although it had been considered one of the more complex chapters in the accession negotiations, Slovakia did not request any derogations or transitional periods for the implementation of legislation or administrative capacity building under this chapter, and declared that it would complete the preparations necessary for accession before the reference day for the Slovakia joining the EU, which was then 1 January 2004.10 However, the task facing Slovakia was not an easy one. In its 1999 regular report on Slovakia’s progress towards EU accession, the European Commission had stressed that ‘there was no progress concerning the alignment of the Slovak visa legislation to EU requirements particularly with regard to Belarus, Russia and Ukraine’.11 This critical evaluation by the Commission presented a challenge for the Slovak government, and expedited the gradual alignment of Slovakia’s visa policy to that of the EU member states. However, in March 2000 the Slovak government approved its ‘Concept of alignment of the visa policy of the Slovak Republic with the European Union’,12 in which it established a calendar for abrogating agreements on visafree regimes with countries on the EU negative visa list. At the same time, the Slovak government decided to renounce the 1981 Czechoslovak–Soviet agreement on reciprocal travel and the protocol to this agreement relating to Ukraine, and to impose visa requirements on Ukrainian citizens as from 28 June 2000. It also terminated the non-visa regime with Russia and Belarus as from 1 January 2001.13 In April 2001, a new Council Regulation 539/2001 updated both the EU positive and negative lists of visa countries, and the Slovak government followed it by adopting a new document on the ‘Harmonisation of the visa policy of the Slovak Republic with the EU’.14 In the ‘Report on the state of the accession talks with the EU’ of February 2003, completing the harmonization of Slovakia’s visa regime by the end of 2003 was one of the priorities.15 Slovakia’s visa regime is now defined by Act No. 48/2002 on the ‘Stay of aliens on the territory of the Slovak Republic’,16 which brought procedures, conditions for applicants and also the different types of Slovak visas into line with EU standards. In December 2001, the Slovak

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government decided to establish the Central Visa Office (CVO), which reviews visa applications by foreign citizens and gives approval for issuing visas. The CVO has been operating since 1 February 2002 as part of the Office of Border and Alien Police, which is the main coordinating institution responsible for the implementation of EU standards in the JHA field, and has its own state budget financing. Starting from 1 April 2002, the CVO has had a direct data online connection with the Ministry of Foreign Affairs. The online data transmission system connecting the Ministry of Foreign Affairs with all Slovak embassies abroad was to be completed and in operation by the end of 2003.17 The bilateral policy context Ukraine is the only one of Slovakia’s neighbours on the EU negative list of visa countries, and following Slovakia’s adoption of the EU’s JHA acquis, the imposition of the visa regime and Ukraine’s response of questioning their bilateral readmission agreement became the most sensitive issues in Slovak–Ukrainian bilateral relations. Public discussion of the imposition of visa restrictions on Ukrainian citizens began in November 1998. Then Czech Foreign Minister Jan Kavan tabled the issue during his visit to Bratislava, when he declared that ‘the Czech Republic will tighten its border policy with Slovakia as long as Slovakia does not tighten controls on the Slovak–Ukraine border, and thus limit the flow of illegal immigrants across this porous border’.18 Slovakia’s then deputy foreign minister, and later chief EU negotiator, Ján Figel’, was the first Slovak state official to react publicly. Apart from the necessity of coordinating the Czech and Slovak approaches so that there would never be a Schengen border between the Czech Republic and Slovakia, he used the ‘EU integration’ argument, according to which Slovakia had to bring its visa policies into line with those of the EU.19 According to Figel’, if Slovakia were in the future to impose a visa requirement on certain countries, this would not imply that the foreign policies of those countries were unsuccessful or untrustworthy, but it would simply be a measure to defend Slovakia’s national interests. Above all, Slovakia had to take effective measures against illegal migration and organized crime.20 Interior Minister Ladislav Pittner added another argument: ‘One of the reasons behind the imposition of the visa requirement is also protecting the labour market, as Ukrainian nationals are ready to work under far worse conditions than Slovak citizens.’21

Schengen Visa Policy in Slovakia 71

The question of imposing a visa regime on Ukraine was one of the main points of discussion between the prime ministers of the Visegrad countries during a summit in the High Tatras in Slovakia in October 1999. It was the only point on the agenda that produced diverging opinions. The Czech and Slovak premiers supported the step, while the Polish and Hungarian premiers opposed it. Slovak Prime Minister Dzurinda said after the talks that the Visegrad countries wanted to coordinate their approach to the issue, which was why no final decision was taken during the summit.22 However, they had in fact been unable to coordinate their approach because the Czech Republic had decided to introduce a visa regime on citizens of the Russian Federation and Belarus from 29 May 2000, and on Ukrainian citizens as of 1 January 2000, regardless of its partners.23 On 15 March 2000, the Slovak government decided to impose a visa regime for Ukrainian citizens as of 28 June 2000 and for Russian, Belarusian and Cuban nationals as of 1 January 2001.24 The Ukrainian government replied in kind, imposing a visa requirement on Slovak citizens from 28 June 2000. Moreover, on 4 October 2000 the Ukrainian Cabinet of Ministers took the decision to renounce its readmission treaty with Slovakia, which meant a radical step back in the protection of common borders and the control of movement of illegal immigrants from the territory of Ukraine to Slovakia.25 Ukraine disagreed with Slovakia’s decision to impose a visa regime, regarding it as being, at the very least, premature. According to the Ukrainian ambassador to the Slovak Republic Yuriy Rylach, the imposition of the visa regime by the Slovak side ‘was not absolutely imperative’.26 The introduction of visas in June 2000 significantly reduced the legal movement of persons through the common Ukrainian–Slovak border. This led the Ukrainian and Slovak governments to negotiate a liberalization of the visa regime aimed at mitigating its negative impact on bilateral relations. An accord was reached at the end of 2000 when the then Ukrainian Prime Minister Viktor Yushchenko paid a visit to Slovakia to meet his Slovak counterpart Dzurinda. The two premiers agreed to create a joint expert commission to look at the results of Slovakia’s visa requirement for Ukraine nationals, and to devise a liberalized regime that would interfere as little as possible with business, social, cultural and sport contacts. In February 2001 the two sides changed the visa regime, effective as of 1 March 2001,

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to eliminate the need to show a letter of invitation by citizens of both countries in order to get a visa, and to provide free visas for children under 16, and to permit the issue of free multi-entry visas for some categories of applicants who had to cross the border often, such as air crews, river and seagoing boat crews, railway workers, truckers, people living in border areas, and above all those with relatives on the opposite side of the state border.27 Thanks to the rapprochement on the visa regime, Ukraine did not withdraw from its 1993 bilateral readmission agreement with Slovakia, but at the same time it did not accept a Slovak proposal of July 2001 to bring the readmission agreement in line with new EU standards based on the European Council’s Recommendations of 30 November 1994 and 24 July 1995. This still creates some tension and misunderstanding in bilateral Slovak–Ukrainian relations. Moreover, representatives of the Slovak Border and Aliens Police noted that even though the readmission agreement with Ukraine was still in place, in 2001 they observed a reduction in the willingness of their Ukrainian partners to cooperate in readmitting persons who illegally crossed the common state border and were detained by the Slovak authorities on Slovak territory. This tendency had become more conspicuous from the end of June 2000, which is when the visa regime came into force. According to the then deputy director of the Slovak Border and Aliens Police, Miroslav Kolcar, whereas in 1999 the Ukrainian side readmitted all illegal migrants detained by Slovak border police, ‘since 28 June 2000 there is a statistically growing number of cases when the Ukrainian side refused’.28

Impacts of the visa regime Legal movement of persons and transport This part of the chapter will assess the impact of the imposition of the visa regime at the Slovak–Ukrainian border in June 2000 using new statistical data provided by the Slovak authorities, especially the Border and Aliens Office of the Police Corps of the Slovak Republic.29 As discussed, the imposition of the visa regime created a rather negative general political framework for bilateral Slovak–Ukrainian relations. Before its imposition, the visa debate on both sides of the Slovak–Ukrainian border revolved around two main fears. The first was that the visa regime would hit human contacts between Slovaks

Schengen Visa Policy in Slovakia 73

and Ukrainians because the number of citizens visiting the other country would dramatically decrease, and the second was that it would result in a reduction of economic cooperation and trade exchange between the two states.30 The following analysis examines the extent to which the ‘post-visa’ reality matches the negative expectations. If we compare annual statistical data on movement of persons through the Slovak–Ukrainian border in 2001 and 2002, the first two full years that the visa regime was in force, with data for previous ‘non-visa’ years, we can make some preliminary conclusions about the impact of the visa regime on Slovak–Ukrainian relations. As Table 4.1 shows, the imposition of the visa regime significantly reduced the number of crossings through the Slovak–Ukrainian border by Ukrainian citizens. The figure rose slightly in 2002 both because of the liberalized visa regime that entered into force in 2001, and because of improvements in the Slovak consular service in

Table 4.1 Number of people legally crossing the Slovak–Ukrainian border, 1998–2002

From Slovakia to Ukraine Citizens of Slovakia Citizens of Ukraine Citizens of non-visa countries Citizens of visa countries From Ukraine to Slovakia Citizens of Slovakia Citizens of Ukraine Citizens of non-visa countries Citizens of visa countries Total number of persons

1998

1999

2000

2001

2002

75,652 1,765,657 67,613

62,096 1,247,294 54,757

52,718 549,726 52,876

54,092 278,315 33,448

76,799 326,331 35,457

3,040

2,501

15,780

32,446

20,740

76,104 1,727,186 69,446

63,140 1,435,277 57,620

53,145 620,545 53,496

53,608 290,849 33,330

76,435 334,809 36,651

2,699

2,065

10,575

24,927

25,237

3,787,397

2,924,750

1,408,861

801,015

932,459

Source: Office of the Border and Aliens Police, Presidium of the Police Corps of the Slovak Republic, March 2003.

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Ukraine, including strengthening the Consulate General in the Ukrainian city of Uzhorod, which is just over the border from Slovakia. However, the visa regime did not affect so dramatically the number of Slovaks travelling to Ukraine. After an initial drop in 2001, in 2002 the total exceeded that in 1998 and 1999. This can again be explained by the liberalization of the visa regime in 2001, and also by the fact that the visa fee of 24 US dollars for single entry is not such a brake for Slovak citizens as their average income is far higher than that of Ukrainians. There was also a decrease in the number of citizens of non-visa countries crossing the border, and a huge increase in crossings by persons from third countries requiring visas, which can be accounted for by the fact that Slovakia imposed visa requirements on citizens of Russia and Belarus on 1 January 2001. However, the total number of legal border crossings in 2001 was little more than a fifth of the 1998 figures, so the visa regime imposed in 2000 had clearly interfered significantly with the Slovak–Ukrainian border regime. At the same time, as Table 4.2 shows, the imposition of the visa regime did not affect transport over the Slovak–Ukrainian border so dramatically as the number of people crossing. There was a significant reduction in buses crossing and a slight drop in the number of cars, but there was a stable increase in the number of passenger trains crossing the border, and a marked rise in freight. This indicates that the visa regime did not have a negative affect on the exchange of goods and services between Slovakia and Ukraine, although a significant part of the increased number of freight crossings in the first two ‘visa years’ of 2001 and 2002 was transit to and from third countries. Figures on bilateral trade (see Table 4.3) show that Slovakia’s trade with Ukraine grew over the years of 2001 and 2002 regardless of the imposition of the visa regime. In other words, one of the two main fears raised during the ‘visa debate’ in both Slovakia and Ukraine – that a visa regime would reduce bilateral economic cooperation and trade – was not realized. However, although the visa regime did not negatively affect bilateral foreign trade, over the last few years there has been a gradual decrease in the relative share of the Ukrainian section of the total Slovak national border in the total number of crossings to and from Slovak territory by individuals. The border with Ukraine represents 6 per cent (97.6 km) of the total length of the Slovak state borders

Schengen Visa Policy in Slovakia 75

Table 4.2 Transport movement through Slovak–Ukrainian border crossings, 1998–2002 1998

1999

2000

2001

2002

From Slovakia to Ukraine Cars Buses Trucks Passenger trains Freight trains

327,848 NA 29,504 1,439 985

211,923 15,449 15,965 1,589 1,383

154,180 6,425 12,862 1,827 3,730

188,293 3,701 16,289 1,954 6,512

227,483 6,625 20,380 2,059 5,563

From Ukraine to Slovakia Cars Buses Trucks Passsenger trains Freight trains

327,500 NA 33,220 1,439 983

224,981 13,265 17,240 1,588 1,373

169,995 7,760 14,029 1,827 3,820

187,765 3,894 17,508 1,954 6,608

223,830 4,151 23,054 2,059 5,652

Total

722,918

504,756

376,455

434,478

517,856

Source: Office of the Border and Aliens Police, Presidium of the Police Corps of the Slovak Republic, March 2003.

Table 4.3 Slovakia’s trade with Ukraine, 1993–2002 (in $ million, current prices) 1993

1994

1995

1996

1997

1998

1999

2000

2001

2002

Exports Imports

130.9 119.1 121.7 177.0 270.0 229.2 136.2 147.1 145.5 155.8 142.4 121.0 188.7 241.3 250.7 181.2 144.8 189.0 194.1 186.9

Total

273.3 240.1 310.4 418.3 520.7 410.4 281.0 336.1 339.6 342.7

Balance ⫺11.5 ⫺1.9 ⫺67.0 ⫺64.3 19.3

48.0

⫺8.6 ⫺41.9 ⫺48.6 ⫺31.1

Source: Ministry of the Economy of the Slovak Republic.

(1677.9 km), and includes two of Slovakia’s 47 road border-crossing points and two of its 20 railway-crossing points to neighbouring countries. Yet the share of the Ukrainian border in the total legal movement of persons over Slovak state borders dropped from 3.4 per cent in 1998 and 2.8 per cent in 1999 to 1.1 per cent in 2002, with a low of 0.8 per cent in 2001. The share of the Ukrainian section of the border in the total movement of transport has been more balanced, as it only decreased from 2.3 per cent in 1998 to 1.9 per cent in 2002,

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but it is still far below the 6 per cent share of the Slovak border that adjoins Ukraine. In other words, contacts over the Ukrainian section of the Slovak border are limited and show a downward trend, in contrast to other sections of the border, and this is especially true where human contacts are concerned. The same also applied to tourists. Only about 6 per cent of the total number of Ukrainians who crossed the border with Slovakia after the introduction of the visa regime made use of tourist accommodation, and as can be seen from Table 4.4, this was only half the previous number of Ukrainians and Russians who had stayed as tourists. The overall number of tourists from all countries visiting Slovakia was also on the rise at the time. Border crime The attention the Slovak authorities have paid to protecting the border with Ukraine since the reform of the border services began in 1999 has led to a decrease in registered illegal activities (other than illegal migration) committed by persons crossing the Slovak–Ukrainian border. This included offences such as being in possession of stolen vehicles or travel documents that had been forged or tampered with. In the case of people crossing from Slovakia to Ukraine, they decreased from 322 in 1998 to 192 in 1999 and 102 in 2002, while for persons crossing from Ukraine to Slovakia there was an even sharper reduction from 685 in 1998 to 353 in 1999 and 129 in 2002.31 Likewise, the number of persons who have not been allowed to cross the border by Slovak border police has decreased gradually from 8172 in 1998 to 5993 in 1999 and 4437 in 2002.32 The introduction of the visa regime in 2000 does not therefore appear to have been crucial in this area. However, the Customs Directorate of the Slovak Republic reports that the number of customs offences committed by legal persons (businesses) and physical persons (individuals) transporting goods over border crossings on the Slovak–Ukrainian border dropped significantly after the imposition of the visa regime in 2000, as can be seen from Table 4.5. Nevertheless, it also notes that the customs service at the border with Ukraine registered just one case of stopping trafficking in narcotics (25.94 kg of heroin) and six cases of attempting illegal transport of armaments (hand-carried weapons, munitions and spare parts for tanks) between 1993 and 2001.33 It therefore

Table 4.4 Foreign visitors who used tourist accommodation in Slovakia by country of origin, 1995–2002 Country of origin

1995

1996

1997

1998

1999

2000

Jan–Sept 2001

Jan–Sept 2002

Czech Rep. Germany Poland Hungary Ukraine Austria Russia Italy UK Netherlands France

215,199 160,590 114,189 61,953 35,991 44,767 27,208 28,865 15,805 26,009 16,817

240,597 155,556 141,738 54,916 39,933 42,880 32,069 27,380 17,063 27,613 18,868

212,916 131,374 116,604 41,815 32,427 36,282 24,495 24,009 19,366 16,270 16,068

244,454 141,373 132,047 49,423 37,725 31,832 27,313 24,968 18,557 15,911 14,633

275,031 137,964 173,135 53,057 31,732 32,643 22,361 27,076 18,049 16,540 14,833

277,401 155,129 201,082 59,322 24,212 36,779 30,861 24,212 10,092 18,772 16,015

276,089 139,325 227,575 59,676 13,491 33,532 16,187 25,463 17,258 19,536 16,113

381,006 152,229 233,223 72,581 14,810 35,818 16,636 27,133 19,559 21,291 17,858

Total

902,975

951,355

814,138

896,100

975,105

1,052,700

1,010,997

1,164,500

Source: Statistical Office of the Slovak Republic, Ministry of the Economy of the Slovak Republic, January 2003.

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Table 4.5 Customs offences committed by legal business entities and individuals 1998

1999

2000

2001

Offences of legal businesses Number of cases 91 69 36 38 Total value of goods 41,820,400 65,690,295 18,953,300 53,128,384 (in Slovak crowns, current prices) Customs and tax evasion 182,478,275 32,247,964 9,007,708 3,064,923 (in Slovak crowns) Offences by individuals Number of cases Customs and tax evasion (in Slovak crowns)

1,389 852,558

4,130 547,672

3,927 22,756

886 7,485

Source: Customs Directorate of the Slovak Republic, 2002.

appears that the Ukrainian section of the Slovak border is not conspicuous for cross-border illegal activities when compared to other parts of the border. Illegal migration One of the main arguments raised by supporters of the visa regime with Ukraine was that it would help Slovakia to protect its borders against illegal migration.34 In fact, this argument was taken from EU documents on justice and home affairs issues, such as the 1999 regular report on Slovakia, which had been one of the most critical reports on Slovakia in the JHA field.35 However, Slovak–Ukrainian experiences from the two-and-a-half ‘visa years’ do not substantiate this argument. They actually prove the contrary, namely that there is no link between a visa regime in bilateral relations and border protection against illegal migration from third countries. The visa regime imposed on Ukrainian citizens has significantly affected legal movement of persons through the Slovak–Ukrainian border, but has done practically nothing to relieve the pressure of illegal migrants from third countries on the border. As shown in Table 4.6, the number of illegal migrants detained annually by the Slovak border police at the border with Ukraine rose

Schengen Visa Policy in Slovakia 79

Table 4.6 Number of illegal migrants detained by the Slovak border police at the Slovak–Ukrainian state border, 1993–2002 Year

Movement of illegal migrants To Slovakia

From Slovakia

Total number of illegal migrants

1993 1994 1995 1996 1997 1998 1999 2000 2001 2002

55 56 72 225 99 353 1,509 1,428 1,846 2,391

36 10 20 10 6 12 52 27 14 8

91 66 92 235 105 365 1,561 1,455 1,945 2,399

Total, 1993–2002

8,034

280

8,314

Source: Office of the Border and Aliens Police, Presidium of the Police Corps of the Slovak Republic, March 2003.

from 91 persons in 1993 to more than 2000 persons in 2002. The critical year was 1999, when the number of illegal migrants detained at the border more than trebled. The increasing pressure of illegal migrants on the Ukrainian section of the Slovak border is matched by developments along the entire border, and has shown a rising trend over the last decade regardless of the visa regime. The statistical data in Tables 4.7 and 4.8 show that there has been some change in the direction of movement of illegal migrants to and from the Slovak territory. In 1993 the most pressured section of the Slovak border was with Hungary, whereas in 1995 it became the border with Poland, then with the Czech Republic and during 2001 and 2002 with Austria. The most significant change on the border with Ukraine was in 1999, when the pressure of illegal migrants increased more than fourfold. At the beginning of the 2000s, the border with Ukraine was the third most problematic section of the Slovak border after the western borders with Austria and the Czech Republic. The pressure of illegal migrants on Slovak borders peaked in 2001, when it rose to 15,548 persons, remaining at a similar level in 2002. In other words, the pressure of illegal migrants practically doubled in the first two years of the century, and increased more than sevenfold

80

Table 4.7 Pressure of illegal migrants* on the borders of the Slovak Republic with neighbouring countries, 1993–2002 Border on

1993

1994

1995

1996

1997

1998

1999

2000

2001

2002

Czech Rep. Ukraine Austria Poland Hungary Slovakia – inland

0 91 309 744 1,038 NA

380 66 163 715 567 NA

63 92 155 1,015 893 NA

1,622 235 220 755 497 NA

926 105 665 564 561 NA

5,254 365 504 843 1,270 NA

3,433 1,641 1,365 776 586 NA

2,190 1,473 1,233 736 427 0

4,098 1,945 6,083 748 1,703 971

3,983 2,399 6,293 761 1,799 0

Total

2,182

1,891

2,786

3,329

2,821

8,236

7,801

6,059

15,548

15,235

Note: * Number of identified and unidentified persons who illegally crossed the Slovak state border in both directions – from and to Slovakia. Source: Office of the Border and Aliens Police, Presidium of the Police Corps of the Slovak Republic, March 2001.

Schengen Visa Policy in Slovakia 81

Table 4.8 Pressure of illegal migrants on the Slovak Republic’s state borders by direction, 1993–2002 Direction

1993

1994

1995

1996

1997

1998

1999

2000

2001

2002

From Slovakia 1,141 1,017 1,446 2,774 2,088 6,320 5,071 3,822 10,773 10,252 To Slovakia 1,041 883 1,340 955 733 1,916 2,818 2,237 4,775 4,983 Source: Office of the Border and Aliens Police, Presidium of the Police Corps of the Slovak Republic, March 2003.

between 1993 and 2002. However, the statistics give us only a relative picture. The fact that the Slovak border police detained more illegal migrants in 2001 and 2002 does not necessarily mean that the real number of migrants in previous years was lower, but could demonstrate a significant improvement in the efficiency of the Slovak border police. This interpretation is supported by the fact that it was during these two years that the Slovak authorities started to implement serious reforms of border management in the context of the EU accession process. The structure of illegal migrants detained at the Slovak–Ukrainian border in terms of their country of origin has remained similar for several years, with a preponderance of nationals of India, China, Afghanistan, Iraq and Bangladesh. There are only two European countries in the top ten group of countries of origin of illegal migrants: Moldova and Ukraine. The number of Ukrainian citizens who have been detained by Slovak authorities illegally crossing the Slovak border averages around 30 persons annually, although in 2002 it increased more than twofold to 68 persons. Nevertheless, this is still a relatively small number compared to the total of 15,235 persons detained illegally crossing Slovak borders.36 While the smuggling of illegal migrants across the Slovak–Ukrainian border is therefore clearly a problem, it does not appear amenable to solution by changing the visa regime. Labour migration In March 1997, Slovakia and Ukraine signed a bilateral intergovernmental agreement on the reciprocal employment of citizens that came into force in May 1998,37 and an implementing protocol to the agreement was signed in April 2002. The agreement allows limited

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annual quotas of citizens from each country to work on the territory of the other in three categories of employment: 200 citizens in longterm employment (for a maximum one-year period, with an option to prolong this for six months if the situation in the labour market permits); 300 citizens in short-term employment (seasonal jobs for a maximum of six months per year); and 1800 persons in employment for a two-year period on the basis of contracts concluded between legal and physical persons in the two countries, extendable to three years if required. Consequently, a maximum of 2300 Ukrainians per year may work legally in the Slovak Republic and vice versa. However, statistics from the National Labour Office of the Slovak Republic show that the quotas for Ukrainians working in Slovakia were not fully utilized, with mostly manual workers (especially building workers) using the possibility, while the number of Slovaks who worked in Ukraine was negligible.38 It is likely, however, that far higher numbers of Ukrainians are working in Slovakia illegally. Initial estimates of the number of illegal workers from Ukraine in the Czech Republic and Slovakia appeared in 1999 and 2000 during the visa debate in both countries. Apart from the main argument for introducing visas – that it was necessary to comply with EU visa policy – it was also argued that both countries needed to protect their labour markets against illegal workers from Ukraine. According to the then spokesperson of the Slovak Ministry of Interior, ‘there are problems especially with Ukrainians who exploit the non-visa regime to cross state borders as tourists and do not respect the terms of their residence in Slovakia. A first category is looking for “black jobs”, while a second category visits Slovakia with the aim of committing crime.’39 The Czech Ministry of the Interior estimated that the number of illegal economic migrants from Ukraine in the Czech Republic was almost 200,000 by the end of 1998, the majority of whom came from the western regions of Ukraine (Lviv, Lutsk, Rivne, Ivano-Frankivsk, Chernivtsy and Uzhorod). The Slovak Ministry of the Interior also published data before the imposition of visas on Ukrainian citizens estimating the number of illegal economic migrants from Ukraine in Slovakia at about 60,000, of whom the majority likewise came from western Ukraine.40 However, the estimate of the number of Ukrainians working illegally in Slovakia would appear to be slightly exaggerated. Systematic detection of illegal workers in Slovakia only began in 2000, when the

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relevant state agencies agreed to coordinate their activities in combating hidden unemployment and illegal work.41 Only then did nationwide inspections begin. In 2000, the number of enterprises and businesses inspected was 2929 and the number of employees inspected was 14,757, rising to 6835 businesses and 44,167 employees in 2002. Of the total of 77,295 employed persons inspected between 2000 and 2002, only 712 – 0.92 per cent – were found to be illegal workers. Labour inspectors cooperating with the Border and Aliens Police also detected 357 illegal workers of foreign origin who were expelled from Slovak territory.42 Therefore only a third of the illegal workers detected were foreign nationals. These are the first empirical data that allow us to estimate the extent of illegal work in Slovakia, and the share of Slovak and foreign nationals involved. There are different estimates of the overall scope of hidden employment and illegal work in Slovakia, varying from 76,000 to 200,000 persons. The Research Institute of Labour estimates that the number of illegal workers in Slovakia is between 76,000 and 82,000 persons, the Ministry of Labour, Social Affairs and Family 82,000, the National Labour Office between 80,000 and 140,000, Moody’s Rating Agency 160,000, and the Taxation Office 200,000 persons.43 If we take the average estimate of illegal workers in Slovakia to be 126,200 persons, of whom, according to labour inspections, a third are foreign nationals, then we reach an estimate of 42,025 of foreigners working illegally in Slovakia. There are no available data on the nationality of the foreign nationals caught working illegally, but even if we assumed that they were all Ukrainians – which is hardly probable – the figure is still lower than the original guess that there are some 60,000 Ukrainians working illegally in Slovakia. It is more realistic to assume that the real number is considerably lower than 40,000. The visa regime does not present an insurmountable obstacle for Ukrainians seeking illegal employment in Slovakia. It is an open secret that most of them work as casual labour in the building industry. Even if we assume that they receive half the average monthly wage in this sector, which is about 5000–6000 Slovak crowns (125–150 US dollars), of which they spend 24 dollars on a single entry visa allowing them to stay in Slovakia for 30 days, they still make more than 100 dollars a month. This is about 550 Ukrainian hrivnas, and compares favourably with the average monthly wage in Ukraine, which in 2001 was 310 Hrivnas. This is a conservative estimate of their real earnings,

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which are likely to be two or three times higher as they normally work 14–16 hours a day, seven days as week. Consequently, the visa regime is unlikely to prevent illegal labour migration from Ukraine to Slovakia as long as there is a market demand for such labour in Slovakia. Criminal activities of Ukrainian citizens in Slovakia Another expectation raised during the ‘pre-visa debate’ in Slovakia was that the imposition of the visa requirement on Ukrainian citizens would stop them engaging in criminal activity on Slovak territory. However, the ‘Report on fulfilling tasks that result from the complex programme for combating crime’ submitted to the Slovak government by the Interior Minister in May 2001 stated that ‘the imposition of the visa regime on Ukraine did not lead to the significant decline in the number of crimes committed by Ukrainian citizens that we originally expected’.44 Of the total number of 93,053 crimes registered in 2001, 1223 (1.3 per cent of the total) were committed by 1054 persons of foreign origin. Most crimes by foreign nationals were committed by citizens of Romania (174 persons), followed by the Czech Republic (168), Ukraine (143) and Bulgaria (109). In 2001, the Slovak authorities expelled 1684 foreign nationals using administrative measures, as well as 62 expelled following court verdicts.45 From 1993 to 2000, the number of foreign nationals barred from visiting Slovakia because they had been designated persona non grata by the Slovak authorities was 2791 persons, of whom 782 (28 per cent) were Ukrainian citizens. This means that Ukrainian nationals rank in second place after Romanian citizens, who comprise 45.2 per cent of those declared persona non grata by the Slovak authorities.46 In other words, the criminal activity of Ukrainian citizens in Slovakia does not as such represent an exceptional phenomenon that would challenge the existing bilateral police cooperation between Slovakia and Ukraine if there were no visa regime.

Summary of main findings A number of conclusions can be drawn from this analysis of the impacts of the visa regime on the Slovak–Ukrainian border regime. Between 1999 and 2002, adopting EU legislation and bringing

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Slovakia’s administrative capacities and border infrastructure into line with EU standards interfered considerably with the bilateral border regime between Slovakia and Ukraine. The imposition of a visa regime significantly affected the number of border crossings made by Ukrainian citizens, which decreased to a sixth of the volume during the pre-visa period. However, the visa regime did not have much effect on travel to Ukraine by Slovak citizens: quite the contrary, in 2002 the number of border crossings by Slovak citizens exceeded that in the pre-visa years. Moreover, the imposition of the visa regime did not affect transport movements over the Slovak–Ukrainian border as dramatically as the legal movement of persons. Figures on bilateral trade show that Slovakia’s trade with Ukraine grew in 2001 and 2002 in spite of the imposition of the visa regime. In other words, one of the main fears raised in both Slovakia and Ukraine during the ‘visa debate’ – namely, that it would reduce bilateral economic cooperation and trade exchange – has not been realized. Nevertheless, contacts across the Ukrainian section of the Slovak border did show a downward trend after the visa regime was imposed when compared to the borders with other neighbouring countries, and this applied in particular to the movement of persons (rather than freight). Both these basic indicators are far below the 6 per cent share of the Slovak–Ukrainian border in the total length of the Slovak state borders. However, when it comes to detecting illegal migration, the Ukrainian section of the Slovak border has been steadily increasing in significance, with by far the most marked increase in 1999. Slovak–Ukrainian experiences from the two ‘visa years’ tend, therefore, to support the argument that there is no link between introducing a visa regime in bilateral relations and protecting the border against illegal migration from third countries. The visa regime has significantly affected legal movement of persons through the Slovak–Ukrainian border, but has done practically nothing to reduce the pressure of illegal migrants from the third countries on the border. However, the attention the Slovak authorities have paid to protecting the border with Ukraine since the reform of the border services began in 1999 has led to a decrease in the number of registered illegal activities other than illegal migration committed by persons crossing the Slovak–Ukrainian border. Nor does the visa regime present an insurmountable obstacle for the Ukrainian citizens seeking

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illegal employment in Slovakia. Finally, imposition of the visa regime against Ukraine did not lead to a significant decline in the number of criminal activities committed by Ukrainian citizens on the territory of the Slovak Republic. Consequently, while the economic disruption predicted before visas were introduced has not been as extensive as feared, a visa regime limiting access to the ‘new EU’ by citizens of excluded East European states appears to do little to increase the internal security of the AFSJ. Many cross-border threats are posed by citizens of third countries, so that improved border protection measures are of greater effect than visa harmonization policies that can disrupt bilateral relations across borders that often – as in the Slovak–Ukrainian case – run through lands that were once in a single state.

Notes 1 For more on the history of relations between Slovakia and Ukraine see A. Duleba, ‘Slovakia’s Historical and Cultural Relations with Russia and Ukraine’, in I. Kempe, W. van Meurs and B. von Ow (eds), The EU Accession States and Their Eastern Neighbours (Gütersloh: Verlag Bertelsmann Stiftung, 1999), pp. 254–76. 2 The Slovak titles of the treaties are Zmluva o spoloenych státnych hraniciach; Zmluva o rezime na slovensko-ukrajinskych státnych hraniciach, spolupráci a vzájomnej pomoci v hranienych otázkach; Dohoda o odovzdávaní a prijímaní osôb cez spoloené státne hranice. 3 Dohoda medzi vládou Eeskoslovenskej socialistickej republiky a vládou Zväzu sovietskych socialistickych republík o podmienkach vzájomnych ciest obeanov oboch státov zo dma 17. decembra 1981, Legal Codex of the Slovak Republic No. 110/1998, p. 2074. There the special protocol to this agreement in regard to Ukraine was signed. 4 This argument has been raised especially by the Ukrainian side, which regarded the decision of the Slovak government to re-impose a visa regime with Ukraine in 2000 as a step returning relations to the pre-1993 past. See Ukrajina ta Slovaccyna naperedodni vvedenna vizovoho rezymu. Dvostoronni vidnosyny ta prykordonne spivrobitnyctvo, Materijaly miznarodnoji naukovoji konferenciji, Uzhorod, 31 travna – 1 cervna 2000 roku, Nacionalnyj Instytut Stratehicnych Doslidzen, Friedrich Ebert Stiftung, Slovenská spoloenost’ pre zahranienú politiku, Ukrajinskyj Centr Doslidzen Problem Miznarodnoji Bezpeky (Uzhorod: Vydavnyctvo V. Padaka, 2000). 5 Slovak title: Dohoda o podmienkach bezvízovych ciest obeanov oboch státov medzi Slovenskou republikou a Ruskou federáciou/Bieloruskom. 6 For more on the reasons for Slovakia’s exclusion, see A. Duleba, ‘Democratic consolidation and the conflict over Slovakian international alignment’, in S. Szomolányi and J.A. Gould (eds), Slovakia: Problems of

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7 8

9

10 11

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

28 29

30 31

Democratic Consolidation (Bratislava: Slovak Political Science Association, Friedrich Ebert Stiftung, 1997), pp. 209–30. Programové vyhlasenie vlády Slovenskej republiky, Bratislava, 1998. Government of the Slovak Republic, Správa o stave prístupovych rokovaní Slovenskej republiky s Európskou úniou a nosné úlohy z hl’adiska plnenia negociaenych záväzkov Slovenskej republiky, Bratislava, February 2003. Ministry of Foreign Affairs of the Slovak Republic, Negotiating Position of the Slovak Republic. Chapter 24: Co-operation in the Area of Justice and Home Affairs, Bratislava, 2000. Ibid. Commission of the European Communities, ‘1999 Regular Report on Slovakia’s progress towards accession to the European Union’, COM(1999) 511 final, 13 October 1999, p. 50. Government of the Slovak Republic, Koncepcia zosúlad’ovania vízovej politiky SR s vízovou politikou EU, Bratislava, 15 March 2000. See Ministry of Foreign Affairs of the Slovak Republic, Negotiating Position. Government of the Slovak Republic, Harmonizácia vízovej politiky Slovenskej republiky s vízovou politikou Európskej únie, Bratislava, 27 June 2001. Správa o stave prístupovych rokovaní, Annex to chapter 24, p. 140. Zákon e. 48/2002 Z.z. o pobyte cudzincov. Schengensky akeny plan. Slovenská republika. 1. Aktualizované znenie, September 2002, p. 9. Národná obroda, 16 December 1998. Národná obroda, 19 January 1999. See J. Figel’, ‘Slovensky migraeny fenomén’, Pravda, 2 August 1999. SITA, 15 August 1999. Sme, 18 October 1999. CTK, 3 February 2000. Pravda, 16 March 2000. For more see A. Duleba, ‘Vzt’ahy s Ukrajinou na bode mrazu’, Profit, 46 (2000). J. Rylae, ‘Skúsky, premeny a predsavzatia. Ukrajina: devät’ rokov nezávislosti – devät’ rokov pozitívnych zmien’, Pravda, 24 August 2000. See A. Duleba (ed.), Ukrajina a Slovensko: Hiadanie spoloenych zaújmov (Bratislava: Vyskumné centrum Slovenskej spoloenosti pre zahranienú politiku a Friedrich Ebert Stiftung, 2001), pp. 30–41; Government of the Slovak Republic, Návrh na uzavretie medzivládnej dohody s Ukrajinou o liberalizácii vízového rezimu formou vymeny nót, Bratislava, 24 January 2001. M. Kolcar, ‘Boj s nelegálnou migráciou a spolupráca s Ukrajinou’, in Duleba, Ukrajina a Slovensko, pp. 48–54, here p. 50. The author would like to express his thanks to the Border and Aliens Office of the Police Corps of the Slovak Republic for its kind help and cooperation in collecting the data that made this analysis possible. For more about the ‘visa debate’ between Ukraine and Slovakia see Ukrajina ta Slovaccyna. Office of the Border and Aliens Police, Presidium of the Police Force of the Slovak Republic, March 2003.

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32 Ibid. 33 This information has been provided by the Customs Directorate of the Slovak Republic by letter sent on 13 February 2002 following the author’s personal application submitted in written form on 22 January 2002. 34 For more about the Slovak visa debate see Duleba, Ukrajina a Slovensko, pp. 19–21, 35–41. 35 See European Commission, ‘1999 Regular Report’ p. 50. 36 Office of the Border and Aliens Police, Presidium of the Police Corps of the Slovak Republic, March 2003. 37 Dohoda medzi vládou Slovenskej republiky a vládou Ukrajiny o vzájomnom zamestnávaní obeanov, Legal Codex of the Slovak Republic No. 110/1998, p. 2074. 38 The author’s special thanks belong to representatives of the International Relations Department of the National Labour Office of the Slovak Republic for their kind cooperation in collecting data presented in this part of the study. 39 See P. Ondera, ‘Skryté riziká ilegálnej migrácie’, Informaeny bulletin, No. 48, Bratislava, Slovenská informaena agentura, 1997. 40 Národná obroda, 26 January 1999; Hospodárske noviny, 5 February 1999; Pravda, 9 June 2000. 41 National Labour Office of the Slovak Republic, Skrytá nezamestnanost’ a boj s nelegálnou prácou, Bratislava, April 2003. 42 See Government of the Slovak Republic, Návrh opatrení zameranych na vyhl’adávanie a potieranie nelegálnej práce, vrátane vyhodnotenia doterajsieho postupu, Bratislava, 2001; Government of the Slovak Republic, Informaená správa o vyhl’adávaní a potieraní nelegálnej práce za II. polrok 2001, Bratislava, 2002; Government of the Slovak Republic, Informaená správa o vyhl’adávaní a potieraní nelegálnej práce za I. polrok 2002, Bratislava, 2002. 43 Office of the Government of the Slovak Republic, Nezamestnanost’ na Slovensku, Bratislava, 2002. 44 Government of the Slovak Republic, Správa o plnení úloh vyplyvajúcich z komplexného programu boja so zloeinnost’ou, Bratislava, 9 May 2001, p. 20. 45 Government of the Slovak Republic, Správa o bezpeenostnej situácii v Slovenskej republike za rok 2001, Bratislava, 13 March 2002, p. 12. 46 Migration Office of the Slovak Republic, December 2001.

5 Justice and Home Affairs and the EU’s New Neighbours: Governance Beyond Membership? Sandra Lavenex

Introduction At the same time as the new EU member states are gradually moving from being passive receivers of EU policies to full members of the area of freedom, security and justice (AFSJ), the external effects of European integration are increasingly becoming felt beyond the new external borders. The shift of the Schengen border will have direct implications for the EU’s new neighbours, their populations, their economies and their own border regimes. Much like the Central and Eastern European countries (CEECs) in the early 1990s, these new neighbours are gaining a pivotal role in the internal/external security nexus of justice and home affairs (JHA) cooperation. Russia, Ukraine, Moldova and Belarus are now the potential source of the ‘soft’ security threats that are at the heart of justice and home affairs, both as countries of origin and, probably more importantly, transit countries for irregular migrants, drug dealers, those involved in organized crime or even terrorists. While the prospect of eastern enlargement may be seen as a major motive behind the deepening communitarization of JHA, this new interdependence, and indeed vulnerability, has not left the Union unaffected, and is gradually being translated into an extensive external 89

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relations agenda in JHA. This chapter analyses this evolving agenda as an attempt at external governance by the EU and its member states that seeks to bind non-member states to the internal policies of the Union. Although it replicates many of the features analysed by the other chapters, this external governance agenda lacks the leverage of the promise of membership. It may thus require alternative ‘carrots’ to encourage abidance to rules which have been decided by others, and which may sometimes require unpopular measures. This chapter starts with a review of the external effects of the EU’s new eastern borders on neighbouring countries and on their own border regimes and cross-border relations. Turning to the EU’s perspective, it goes on to discuss how the new neighbourhood affects the perception of internal security priorities in the enlarging Union, thereby shaping the EU’s JHA agenda. How this agenda has reacted to new geopolitical circumstances is at the heart of the third section, which scrutinizes the various initiatives that have been developed to commit the EU’s new neighbours in the governance of the AFSJ. A new framework for engaging the neighbouring countries in such far-reaching cooperation has recently been launched with the ‘Wider Europe’ initiative, which will be briefly discussed before the chapter concludes with some reflections on the dynamics and the limits of external governance in JHA.

Beyond the eastern border: external effects of EU enlargement The previous chapters of this book have already indicated some of the ways in which the new external border is affecting neighbouring countries and their relations with the new member states in particular and the Union in general. Problems arising from the erection of ‘hard borders’ include economic disruption caused by negative effects on trade flows or regional development; the issue of ethnic minorities living across states’ territorial borders; and more generally these countries’ geopolitical space as the European borderland and gateway to Asia. Apart from the Soviet legacy, territory and borders have always been sensitive issues in these countries. Belarus, Moldova and Ukraine are classic borderlands which have been moved back and forth between neighbouring countries in the past: Belarus between Russia and Poland, Moldova between Russia and

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Romania, and Ukraine, whose name means originally ‘march’ or ‘border area’,1 between Russian, Austro-Hungarian, Polish and Soviet domination before regaining independence in 1991. The legacy of past territorial rule and population movements is felt from the Russian borders with the Baltic states in the north, through Ukraine’s and Belarus’s relations with Poland, to Moldova’s ties with Romania in the south, and fits uneasily with the Schengen regime. The view from Moscow Viewed from Moscow, the first sensitive border issue affected by the Schengen regime is the borders between the Baltic states and Russia where, in spite of many years of negotiations, border demarcation agreements were still not in force by 2003.2 Nevertheless, prompted by the obligation to align themselves to the Schengen acquis, the Baltic states became the first candidate countries to introduce visa requirements for the citizens of Russia, Belarus, Ukraine and Moldova in 1993 and 1994. This principally affected the large Russian or Russian-speaking minorities living in the Baltic states, especially in Estonia and Latvia, where they comprised 35 and 40 per cent of the respective total populations.3 With EU enlargement, these people have become part of the EU, although many of them lack the citizenship of their country of residence. At the same time, however, they have in some respects been cut off from their Russian homeland. One salient example is the Narva–Ivangorod border between Estonia and Russia, where Russian communities are living directly alongside each other. Crossing the border to Russia and vice versa has become a major undertaking, and, even with all necessary documents, may take several hours. Another sensitive border issue concerning Russia as well as Lithuania and Poland is Kaliningrad, which has now become a Russian exclave surrounded by EU member states. After several years of tense negotiations on the issue of how to regulate transit travel between the Russian mainland and the Kaliningrad oblast (district), a preliminary solution was eventually reached at the EU–Russia Summit in November 2002.4 The result was the facilitated transit document (FTD), which became operational on 1 July 2003. Equivalent to a multiple-entry transit visa, the FTD can be obtained by application from a Lithuanian consulate at lower costs than a normal visa. For single train trips, the facilitated rail travel document (FRTD) will be

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introduced, which may be obtained at the time of ticket purchase subject to a special examination procedure by the Lithuanian authorities. Although cheaper and easier to obtain than a Schengen visa, the FTD is nevertheless a major impediment to intra-Russian travel and, in particular for people living at a distance from a Lithuanian consulate, is also coupled with significant transaction costs. From a Russian perspective, it represents an infringement of national sovereignty. Moreover, the fact that the EU negotiators made concessions from a fully fledged visa regime contingent on Russia’s consent to signing a readmission agreement shows the asymmetry of current power relations. The view from Kyiv and Minsk As discussed in Chapter 3, the transformation of the Polish–Ukrainian and, to a lesser degree, also the Polish–Belarusian frontier cuts through border regions which have developed dynamically over the last 15 years, and where cross–border trade and small business have become a crucial factor for regional economic development.5 Several hundred thousand Ukrainians work in neighbouring countries, although often in precarious conditions. Many of them move back and forth between their home country and the places where they find work, often in the form of short-term jobs, leading to what scholars have coined ‘pendular’ migration.6 Others have used the common Schengen space to move as far away as Portugal. Here, a chain migration has developed, with Portuguese construction workers moving to German construction sites and (even cheaper) Ukrainian workers filling their jobs in Portugal. In contrast to the governments of the Baltic states, where the adoption of the Schengen visa regime met little resistance, Polish élites are more strongly opposed to what many consider a cut through a common cultural homeland (in particular the region of Galicia in western Ukraine). Rather than adopting the Schengen rules, Poland in June 1996 signed an agreement on visa-free travel with Ukraine and postponed the introduction of the visa for nearly as long as the EU would tolerate it, that is, until shortly before accession. As late as 2001, Slovakia also introduced a simplified visa regime with Ukraine. Apart from trade and economics, cultural links present a major dilemma, with nearly 400,000 ethnic Poles living in Belarus (mainly in the Hrodna and Brest Regions) and 200,000 in western Ukraine.7

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The view from Chis¸inau Moldova is the poorest country in Europe, and is ‘still concerned with the most elementary of state-building problems’.8 Like Belarus, Moldova is a new post-Soviet state, and since much of it was previously part of Romania, national identity remains unsettled. An attempt to reunify with Romania in the early 1990s unleashed a civil war which resulted in the secession of the largely Russian-populated Transdniester region, with a separatist government which now controls 12 per cent of the territory. According to Löwenhardt, Hill and White, one-third of the Moldovan workforce lives and works abroad, most of them illegally.9 With more than 60 per cent of the Moldovan population speaking Romanian, the launch of accession negotiations between Romania and the EU spurred fears of being isolated from Europe, and prompted many Moldovans to acquire dual Moldovan and Romanian citizenship. Romania’s open border regime with Moldova was one of the main reasons why Romanian citizens were the last to still require a visa for the Schengen area. In exchange for visa-free travel to the Schengen states, Romania imposed a passport requirement on Moldovan citizens in July 2001. These are just some of the dilemmas posed by the eastwards shift of the Schengen borders. Others concern the large ethnic Hungarian minorities living not only in current and future member states (approximately 60,000 in Austria, 1.6 million in Romania, 567,000 in Slovakia), but also in Serbia (around 345,000) and Ukraine (180,000).10 Whereas these disruptive effects can be seen as unintended consequences of the EU’s JHA acquis, the Union has recently moved towards a much more proactive stance vis-à-vis its eastern neighbours, and is gradually seeking to involve them actively in its JHA agenda.

The foreign policy dimension of JHA Justice and home affairs, traditionally core issues of domestic politics (as the term suggests), have developed a dynamic foreign policy agenda over recent years.11 This foreign policy agenda is an attempt to bind third countries to EU policy goals in the internal security field, and is particularly important when dealing with states that are countries of origin or transit of problems such as irregular migrants or organized crime. While the last section highlighted the unintended

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external effects of moving the Schengen area eastwards to the borders of the EU’s new neighbours, this section turns to more purposeful activities by the Union and its member states that seek to include these neighbours in parts of what has become the JHA acquis. It will first present the broader framework of external relations in JHA before scrutinizing its actual propagation to the EU’s new eastern neighbours in the next section. Although not explicitly listed in the EC Treaty, this foreign policy dimension has been gaining steadily in importance since the Amsterdam Treaty and now forms one of the main focuses of JHA cooperation. Today, it includes four aspects. The external dimension of migration policy is aimed at the effective control of the EU’s external borders, and includes the signing of readmission agreements with countries from which migratory flows originate. With regard to police and judicial cooperation in criminal matters, third countries will be systematically involved in the fight against specific forms of crime such as financial crime, money laundering, corruption and trafficking in human beings. The third dimension of foreign policy cooperation in JHA concerns the fight against drug trafficking; and the fourth the strengthening of non-military aspects of crisis management and security through police cooperation in crisis regions.12 While the Amsterdam Treaty provided the basis for linking JHA concerns with the general external relations of the European Union, attempts to expand the scope of JHA instruments beyond the circle of the member states date from the early 1990s, and have been propagated by both EU institutions and the intergovernmental Schengen group. From the point of view of the European Commission and the European Parliament, a foreign policy dimension was proposed specifically for the fields of refugee and immigration policy. The purpose then was to complement the focus on immigration control and the fight against fraudulent asylum claims that was predominant in the Schengen group and ‘third-pillar’ cooperation with a preventive strategy which would tackle the root causes of forced migration in countries of origin.13 While these proposals were not taken up by the member states, another approach was put forward which may be termed an ‘externalization strategy’,14 and which essentially consists in the externalization of traditional tools of domestic or EU migration control through their export to third countries. As early as 1991, the member states and the Schengen Group started to negotiate

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readmission agreements with neighbouring countries and to engage in cooperation in the field of border security.15 These endeavours gained political approval in 1992, when the Declaration of the Edinburgh European Council recommended that member states ‘work for bilateral or multilateral agreements with countries of origin or transit to ensure that illegal immigrants can be returned to their home countries …’.16 Soon, the candidate countries of Central and Eastern Europe as well as the Baltic states became the main focus of external policy cooperation, and the targeted export of specific instruments was replaced by the general obligation to adopt the JHA and Schengen acquis in full.17 While the CEECs thereby became insiders of the AFSJ, the external dimension of JHA shifted to the countries beyond the new external border, especially in Eastern and South-eastern Europe, but also in the Mediterranean. After the communitarization of parts of the JHA acquis in the Amsterdam Treaty, the external dimension was officially embraced by the Special European Council on Justice and Home Affairs in Tampere in 1999 which stipulated that JHA concerns should be ‘integrated in the definition and implementation of other Union policies and activities’, including external relations.18 The main guidelines for this programme were laid down in a report which the EU heads of state or government formally adopted at the 2000 Feira European Council. This development of a foreign policy agenda reflects the fact that in the emerging AFSJ, threats are increasingly seen to arise from outside the Union; ‘internal security’ problems are thus being turned into questions of external security, but are dominated by domestic political concerns. This externalization of JHA issues has been paralleled by a deflation of the internal impetus for policy harmonization between the member states,19 and has turned into the most dynamic aspect of this cooperation. In this context, the communitarization of asylum and immigration matters has provided a welcome instrument for increasing leverage vis-à-vis third countries. With its new competencies, the EU can now negotiate as a unified actor with nonmember states, and use its economic and political weight to influence the behaviour of non-member states. For instance, with reference to the return of irregular migrants, the Commission has recently pointed out that ‘as readmission agreements are solely in the interest of the Community, their successful conclusion depends very much

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on the “leverage” at the Commission’s disposal. In that context it is important to note that, in the field of JHA, there is little that can be offered in return …’ Therefore, the ‘possibility of increasing complementarity with other Community policies in order to help achieving the Community’s objectives in the field of return and readmission’ should be considered.20

JHA in relations with the new eastern neighbours With eastern enlargement Russia, Ukraine, and, to a lesser degree, also Belarus and Moldova have become priority countries for external relations in JHA. This comes perhaps as no surprise when one looks at the geography of the enlarged EU. The external border as ‘guardian’ of the AFSJ now extends roughly 2500 km with Russia, 1250 km with Belarus, 1150 km with Ukraine and 450 km with Moldova. There is a growing feeling of the interdependence and even vulnerability21 of the open Schengen area towards the ‘zones of turmoil’22 at its eastern borders. A growing gap between a prospering EU and the countries on its eastern and southern borders may exacerbate internal security risks on both sides of the new borders. According to the Commission, interdependence – political and economic – with the Union’s neighbourhood is already a reality. … Closer geographical proximity means the enlarged EU and the new neighbourhood will have an equal stake in furthering efforts to promote trans-national flows of trade and investment as well as even more important shared interests in working together to tackle transboundary threats – from terrorism to air-born pollution.23 Apart from steep and probably deepening socio-economic disparities, the open border regime between Russia and almost all CIS countries is viewed as making the region a transit area for irregular migrants from further east and south, and hence a major threat to the management of the external border. The activities of traffickers dealing with illicit drugs and/or human beings just add to this perception, as do money laundering and international crime.24 The lack of experience and resources, and the weakness of legal and administrative procedures for dealing with these problems, are further reasons why the EU has developed a proactive stance and is exporting

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parts of what has become the JHA acquis to its eastern neighbours.25 These activities are reviewed below. JHA cooperation with Russia EU relations with Russia are regulated by three sets of instruments: the Partnership and Cooperation Agreement (PCA), the Tacis programme, the Common Strategy and the specific JHA Action Plans. The evolution of these instruments since their inception in the second half of the 1990s shows a clear shift of emphasis from economic goals and military security and environmental concerns (especially nuclear weapons and nuclear power) towards JHA and, more specifically, border control and the fight against irregular immigration and organized crime. The PCA with Russia came into force in December 1997 and defines a country-specific framework of cooperation. Concluded for an initial period of ten years, it establishes the institutional framework for bilateral relations, sets principal common objectives, and calls for activities and dialogue in a number of policy areas. It was, however, only after the adoption of the Amsterdam Treaty that JHA received a prominent position in this cooperation. This first step in this direction was the adoption of the Common Strategy for Russia at the European Council meeting in Cologne in June 1999.26 The main aim of this strategy is to engage Russia in more far-reaching cooperation and to support reforms in political, social and economic areas. In general terms, consolidation and reinforcement of the rule of law is one of the principal objectives. In JHA more specifically, the Common Strategy contains provisions on judicial and police cooperation in the fight against organized crime, money laundering, trafficking in human beings and drug trafficking.27 Implementation of the Common Strategy takes place in the framework of the PCA and its institutions. On the basis of the country strategy, the EU adopted a more detailed Action Plan against organized crime in Russia.28 The Action Plan was approved by Russia at the Cooperation Council meeting in April 2000 and is now the priority instrument for JHA cooperation. The thematic priorities mentioned in the document include financial crime such as money laundering; trafficking in persons, drugs and explosives; and stolen property, corruption and illegal immigration. Judicial cooperation involves the adoption of relevant international

98

The AFSJ in the Enlarged Europe

instruments and the identification of contact points and exchange procedures with EU judicial agencies, while law enforcement concentrates on enhancing the training of law enforcement officials, the establishment of a framework for the exchange of technical, operational, strategic and intelligence information, and setting up exchange programmes and strengthening border controls.29 One focus of these activities is negotiations on the conclusion of a readmission agreement for irregular migrants, which – faced with Russia’s reluctance – were linked with the resolution of the conflict on transit rules for Kaliningrad. Apart from that, meetings and cooperation have developed at several levels of the JHA architecture. During the Swedish Presidency, a ministerial meeting at Troika level was organized to discuss the implementation of the Action Plan, which is now backed by regular meetings at the level of liaison officers. At the judicial level, Russian prosecutors have been invited to join meetings of the European Judicial Network, and Russian delegates are now regular guests in pertinent conferences and seminars organized by the EU.30 The financial and technical aspects of this cooperation are mainly covered by the Tacis national and regional (Tacis CBC) programmes. When Tacis was initiated in 1991, technical assistance was a standalone activity that covered mainly economic transformation. Since 1996, and in particular the new Council Regulation of December 199931 and the Tacis Regional Cooperation Strategy Paper for 2004–2006,32 JHA has figured prominently as one of three themes in this cooperation, together with sustainable management of natural resources and promoting trade and investment flows. Within JHA, the main financial contributions are directed toward measures against organized crime (mainly trafficking in drugs and human beings, but also money laundering) and border management, while the management of asylum and immigration has hitherto received only about 6 per cent of Tacis regional JHA funds.33 Apart from these bilateral relations between the EU and Russia, JHA cooperation is also promoted at the regional level in the so-called Northern Dimension Initiative (NDI) which provides a regional framework for enhanced cooperation between eleven North European countries, including the three Baltic states, Poland and Russia.34 The stated objective of this Initiative, which was originally sponsored by Sweden and Finland, is to address the special regional development

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challenges of Northern Europe, to create security and stability in the region, protect the environment, and avoid the emergence of new dividing lines as more countries join the Union. In the field of JHA, the Task Force on Organized Crime was set up by the Baltic Sea States Summit in Visby in 1996 and is supported by all countries of the Northern Dimension. The Task Force (often referred to as the ‘Visby Group’) initiates and coordinates joint law enforcement activities, including police, customs, border police and prosecutors. The group also deals with and coordinates action on illegal migration, money laundering, stolen cars, highly taxed goods, trafficking in women, drugs and corruption. In the literature, the NDI has been praised as a model of postmodern, deterritorialized ‘network governance’ and an example of region building at the EU’s porous external borders.35 The main reason for this positive evaluation is the holistic approach towards regional development adopted by the Initiative, and its egalitarian participation mechanisms. Although originally only a minority of the states involved were EU members, since enlargement Russia has become the only non-member state in this multilateral framework. This could gradually transform the NDI from a truly multilateral to a bilateral EU–Russia cooperation framework. JHA cooperation with Ukraine The Partnership and Cooperation Agreement (PCA) between the EU and Ukraine was signed on 14 June 1994, ten days before the one with Russia. After the Agreement entered into force in 1998, the EU adopted a Common Strategy on Ukraine in December 1999.36 The Strategy describes the relationship with Ukraine as a ‘strategic partnership’ and identifies three principal strategic goals for the EU with regard to Ukraine: support of the democratic and economic transition process in Ukraine; cooperation on ensuring European stability and security in meeting common challenges on the European continent; and increased economic, political and cultural cooperation, in particular in the context of EU enlargement and in JHA. The explicit inclusion of JHA among the main priorities in the EU’s relations with Ukraine was one of the key innovations of the Common Strategy. Although some provisions concerning JHA were already included in the PCA,37 the Common Strategy documents the increasing importance of JHA after the Amsterdam Treaty and its expanding external

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dimension. This is also reflected in the evolution of the Tacis programme which, since the new regulation of 1998, has focused on Ukrainian border management as one of its priorities. Apart from border management, JHA issues also include the fight against irregular immigration, asylum issues, smuggling and trafficking of persons, drugs and arms and terrorism. In December 2001, the EU Action Plan on Justice and Home Affairs in Ukraine38 was adopted, and the fifth Cooperation Council in March 2002 identified the negotiation of an EU–Ukraine readmission agreement, improved border management, immigration, judicial reform, the rule of law, organized crime and terrorism as the principal priorities. In order to ensure implementation, a scoreboard was agreed as well as regular meetings at ministerial and official level. These endeavours have already shown some tangible results. In February 2001, the Ukrainian parliament passed a law ‘On Amending Some Legal Acts of Ukraine for Fighting Illegal Migration’ which introduced criminal liability for repeated illegal border crossings. Also, the Criminal Code introduced criminal liability for organizing or managing trafficking in human beings. In the same year, a new law ‘On Immigration’ was passed, which introduced an annual immigration quota and established a single national executive agency for migration. Changes are also visible at the Ukrainian border with Poland, where Ukrainian border guards have started dismantling the remainders of the old Soviet-time barbed-wire infrastructure and, since June 2001, have engaged in cooperation with Polish border guards in order to control jointly the EU’s new external border. These developments do not leave Ukraine’s own neighbours unaffected. On the one hand, as with Russia, the EU’s endeavours to sign a readmission agreement with them prompted Ukraine to sign readmission agreements with their own eastern and southern neighbours in order to ensure the expulsion of irregular migrants. On the other hand, these developments imply a fundamental transformation of the liberal travel regulations which originated from the Soviet era. In June 2001, Ukraine adopted a resolution according to which citizens of all CIS countries except Russia and Belarus need a valid foreign passport to enter Ukraine. In interpreting these developments, it is important to note that in contrast, for example, to Russia and Belarus, Ukraine has stipulated its strategic aim of becoming a ‘full-fledged EU member’.39

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JHA cooperation with Belarus and Moldova As successors of the former Soviet Union, Belarus and Moldova were included in the same framework of cooperation with the EU as their bigger neighbours Russia and Ukraine. With Belarus, negotiations on a PCA were concluded in 1995, but the adoption and implementation of the Agreement were halted due to political developments under President Lukashenka. Nevertheless, cooperation was not completely stalled and continued in those areas which are given particular priority by the Union. In this respect, the Annual Reports of the Tacis programme are revealing. Although Belarus had been suspended from enhanced strategic cooperation, it has been participating in an Inter-state and Cross-border Cooperation programme financed by Tacis which covers activities relating to border control.40 The PCA with Moldova was negotiated at the same time as those with Russia, Ukraine and Belarus, and entered into force in July 1998. Three years later, the Commission adopted the Moldova Country Strategy Paper (CSP), which provides the strategic framework within which EU assistance will be provided for the period 2002–2006. Noting that instability in Moldova could easily spill over into the Union, the Strategy Paper states that ‘the EU will contribute through its cooperation to fighting crime, corruption, smuggling and illegal migration’.41 The priority given to JHA is also salient in the Tacis Indicative Programme 2002–2003, included in the same document, which lists as specific good governance objectives first the ‘creation of an anti-corruption policy and programme aiming at establishing a comprehensive network on this issue, including relevant legislation, institution building, prevention, awareness raising and enforcement’ and second the ‘development of an anti-money laundering regime, in particular creation of appropriate legislation and of a Financial Intelligence Unit (FIU)’. Improvement of the business environment or of available information for poverty assessment and monitoring and environmental degradation follow in the list.42 Other initiatives Although, generally speaking, EU activities in JHA have hitherto focused on the bigger countries Russia and Ukraine which, since enlargement, have borders with EU member states, it is important to note that intense cooperation takes place outside the formal

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institutions of the EU in more or less informal inter- or transgovernmental fora. Probably the most influential forum promoting cooperation in border security and the fight against illegal immigration, including trafficking in human beings, is the so-called Budapest Group, which was launched on German initiative in 1993 and has evolved into a pan-European cooperation framework. The interior ministries of 40 countries as well as various international organizations participate in this forum.43 Increasingly, the Budapest Group tackles migration control problems in countries such as Russia, Ukraine and Moldova that neighbour the EU’s new member and candidate states, and a special working group has been set up for them.44 Apart from the Budapest Group, there is also a proliferation of regional initiatives dealing with issues related to internal and external security. One example is GUUAM, named after its member states (Georgia, Ukraine, Uzbekistan, Azerbaijan, Moldova), which was created in Vienna in 1996. Its Agreement on Cooperation provides for both bilateral and multilateral activities in the fight against terrorism and organized crime, including cooperation on border and customs control issues and the introduction of a unified data exchange system in antiterrorism activities.45 It is interesting to note that the main sponsor of GUUAM’s activities is not the EU or some of its member states, but the USA.

The ‘Wider Europe’ initiative: towards a new neighbourhood policy? The bilateral and sometimes uncoordinated cooperation frameworks presented above have become subject to a new EU initiative in 2003, the ‘Wider Europe’ initiative which seeks to formulate a holistic multilateral approach to the EU’s new neighbours based on the principles of partnership and cooperation. Although motivated largely by the wish to develop a more coordinated and coherent strategy towards the different neighbouring countries, this initiative was also spurred on by the realization of the potential negative effects of enlargement on these countries and the desire to prevent the creation of ‘sharp edges’ in Europe.46 Although the fact that the Union’s future neighbours would be affected by the forthcoming enlargement emerged at different points in the enlargement negotiations with the Central and Eastern

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European countries, it was only in 2002 that the EU explicitly addressed the issue. In April 2002, the General Affairs Council requested the Commission and the High Representative for Common Foreign and Security Policy to ‘work up ideas on the EU’s relations with its neighbours’. Six months later, the work was launched, focusing on Ukraine, Moldova and Belarus. This initiative was backed at the highest political level by the EU heads of state and government meeting at the December 2002 Copenhagen European Council, which confirmed that the Union should enhance relations with its neighbours in order to ‘avoid new dividing lines in Europe and to promote stability and prosperity within and beyond the new borders of the Union’. Apart from the three countries mentioned above, these conclusions also called for the inclusion of Russia as well as the Southern Mediterranean countries47 in this enhanced cooperation, meaning that it should embrace all neighbouring countries that had no prospect of EU membership.48 Based on these initiatives, the Commission drafted a strategy paper entitled ‘Wider Europe – Neighbourhood: a new framework for relations with our eastern and southern neighbours’, which sets out the guidelines for this enhanced cooperation. These proposals were welcomed by the subsequent European Council meeting in Thessaloniki in June 2003, in which the EU heads of state or government declared their will to ‘reinforce … shared values and promote … common interests … [by] developing new policies toward Wider Europe’.49 Recognizing the existing interdependence between the Union, its new member states and neighbouring countries, this new initiative opens up the possibility of the most extensive association below the threshold of membership: ‘all the neighbouring countries should be offered the prospect of a stake in the EU’s internal market and further integration and liberalization to promote the free movement of persons, goods, services and capital’. At the same time, the EU expects these countries to come into line with its own structures, including ‘demonstrating shared values and effective implementation of political, economic and institutional reforms, including aligning legislation with the acquis’.50 In so far as a preliminary assessment of this very recent initiative can be made, the available documents suggest a slightly different approach to external JHA cooperation which encompasses both the EU’s priorities of securing its external borders and the neighbouring countries’

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ambitions to have access to the common market. Highlighting the Action Plans concluded for Russia and Ukraine as a model for cooperation in preventing and combating common security threats such as terrorism, organized crime, customs and taxation fraud, the Wider Europe initiative also calls for a facilitation of lawful migration including, as a long-term objective, free movement of people and labour, and the promotion of human rights. In institutional terms, the Wider Europe initiative seeks to provide a ‘differentiated, progressive, and benchmarked approach’ that would build on formal association treaties and their respective institutional frameworks in a long-term perspective. Although the Commission Communication and the Council’s reaction to it51 show that the understanding behind the inclusion of the neighbouring countries – exchanging market access for cooperation in areas of interest to the EU countries, such as security – is a conditional one, the Commission explicitly calls for a benchmarking approach that would ‘offer greater predictability and certainty for the partner countries than traditional “conditionality” ’. Furthermore, these benchmarks should not be dictated unilaterally but ‘wherever possible should be developed in close cooperation with the partner countries themselves’ and with the assistance of relevant international organizations.52

Conclusion: external governance in JHA While the prospect of eastern enlargement and the determination to bind the new member states to the internal security agenda boosted the communitarization of JHA, the EU’s new neighbourhood has boosted the development of a foreign policy dimension to this cooperation. Dictated by fears that ‘soft security’ risks would spill across the new external border into the AFSJ, this strategy has hitherto consisted of efforts to export concepts and instruments developed inside the Union to neighbouring states. This can be described as an attempt at external governance, whereby the EU tries to bind non-member states to internal policies in whose elaboration the latter have not participated. This attempt at external governance is in many respects comparable with the enlargement strategy applied towards the new member states. Although the new set of neighbours will not qualify for membership, the content of this cooperation has basically followed an EU-led

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agenda, with cooperation and concessions occurring on the basis of conditionality.53 Throughout, the instruments adopted towards the eastern neighbours apply a conditional approach where financial contributions, access to EU markets and other support is made dependent on the fulfilment of goals defined by the EU.54 It therefore comes as no surprise that priorities of the EU … have however not always coincided with those of the NIS55 countries. In effect, while donors have been interested in strengthening the western borders of NIS countries in order to stem the flow of illegal migrants from moving further west, the priority of the NIS countries has been to reduce the flow of illegal migrants entering through their eastern borders.56 The Wider Europe initiative, and the far-reaching association proposed therein, may thus be an attempt to redress the hitherto unilateral and EU-dominated focus of neighbourhood relations and to establish a framework within which the negative consequences of EU enlargement could be mitigated. Viewed from a different perspective, however, this initiative might also be an attempt to find a substitute for the leverage provided by the promise of membership in shaping JHA regimes in neighbouring countries. In any case, these developments show the wider implications of securing an area of freedom, security and justice within the circle of the member states, first for the candidate countries, then for their neighbours, and further beyond.

Notes 1 M. Foucher, ‘The Geopolitical European Frontiers’, in M. Anderson and E. Bort (eds), The Frontiers of Europe (London: Pinter, 1998), p. 236. 2 M. Light, S. White and J. Löwenhardt, ‘A Wider Europe: The View from Moscow and Kyiv’, International Affairs, 76 (2000), 77–88. Border demarcation agreements between Russia and the Baltic states had been finalized but were stalled by the Russian parliament, which failed to ratify them. 3 H. Hubel (ed.), EU Enlargement and Beyond: The Baltic States and Russia (Berlin: A. Spitz Verlag, 2002), p. 2. 4 The Summit Declaration states that the scheme’s operation shall be reviewed no later than 2005. 5 See also H. Grabbe, ‘The Sharp Edges of Europe: Extending Schengen Eastwards’, International Affairs, 76 (2000), 519–36; Light, White and Löwenhardt, ‘A Wider Europe’; J. Löwenhardt, R. J. Hill and M. Light,

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6

7

8 9 10 11

12

13

14 15

16

17 18 19

‘A Wider Europe: the view from Minsk and Chisinau’, International Affairs, 77 (2001), 605–20. E. Morawska, ‘Gappy Immigration Controls, Resourceful Migrants, and Pendel Communities: East–West European Travelers’, in C. Joppke and V. Guiraudon (eds), Controlling a New Immigration World (London: Routledge, 2001); C. Wallace and D. Stola (eds), Patterns of Migration in Central Europe (Basingstoke: Palgrave, 2001). See also J. Cichocki, ‘Direct Neighbourhood: Border Issues and Visa Regulations – an Eastern Perspective’, in I. Kempe (ed.), Beyond EU Enlargement. The Agenda of Direct Neighbourhood for Eastern Europe (Gütersloh: Bertelsmann Foundation, 2001). Löwenhardt, Hill and Light, ‘A Wider Europe’, p. 621. Ibid. G. Amato and J. Batt, The Long-Term Implications of EU Enlargement: The Nature of the New Border (Brussels: European Commission, 1999), p. 82ff. For a comparative analysis of the formal and informal, intended and unintended external effects of EU asylum and immigration policies see the contributions in S. Lavenex and E. Uçarer (eds), Migration and the Externalities of European Integration (Lanham: Lexington Books, 2002). Council of the European Union, ‘European Union priorities and policy objectives for external relations in the field of justice and home affairs’, 7653/00 JAI 35. C. Boswell, ‘The “External Dimension” of EU Immigration and Asylum Policy’, International Affairs, 79 (2003), 619–38; J. van Selm, ‘Immigration and Asylum or Foreign Policy: The EU’s Approach to Migrants and their Countries of Origin’, in Lavenex and Uçarer, Migration and the Externalities of European Integration, pp. 143–60. Boswell, ‘The “External Dimension” ’; Lavenex and Uçarer, Migration and the Externalities of European Integration. Grabbe, ‘The Sharp Edges of Europe’; S. Lavenex, Safe Third Countries. Extending the EU Asylum and Immigration Policies to Central and Eastern Europe (Budapest and New York: Central European University Press, 1999). See ‘Declaration on principles governing external aspects of migration policy’, Annex 5 to Part A of the Presidency Conclusions of the Edinburgh European Council, 11–12 December 1992, published in EC Bulletin 12, 1992, p. 23. S. Lavenex, ‘Migration and the EU’s New Eastern Border: Between Realism and Liberalism’, Journal of European Public Policy, 8 (2001), 24–42. European Council, ‘Presidency Conclusions’, Tampere European Council, October 1999. On the limping Europeanization of migration and refugee policies see A. Geddes, Immigration and European Integration: Towards Fortress Europe? (Manchester: Manchester University Press, 2000); S. Lavenex, The Europeanisation of Refugee Policies: Between Human Rights and Internal Security (Aldershot: Ashgate, 2001). For a recent critical appraisal of progress in fulfilling the Amsterdam agenda in JHA see European Convention,

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20 21

22 23

24

25

26

27 28

29

30

Praesidium, ‘Justice and Home Affairs – Progress report and general problems’, CONV 69/02, 31 May 2002. European Commission, ‘Green Paper on a Community Return Policy on Illegal Residents’, COM(2002) 175 final,10 April 2002, p. 24. On the notions of interdependence, sensitivity and vulnerability see R. Keohane and J. Nye, Power and Interdependence: World Politics in Transition (Boston: Little Brown, 1977). M. Singer and A.B. Wildavski, The Real World Order: Zones of Peace and Zones of Turmoil (Chatham, NJ: Chatham House Publishers, 1993). Commission of the European Communities, ‘Communication on Wider Europe Neighbourhood: A New Framework for Relations with our Eastern and Southern Neighbours’, COM(2003) 104 final, 11 March 2003, p. 3, emphasis added. For assessments of ‘soft security risks’ at the EU’s future external borders, see the contributions in I. Kempe (ed.), Direkte Nachbarschaft. Die Beziehungen zwischen der erweiterten EU und der Russischen Föderation, Ukraine, Weissrussland und Moldova (Gütersloh: Bertelsmann, 1998); I. Kempe and W. van Meurs (eds), Toward a Multi-Layered Europe: Prospects and Risks Beyond EU Enlargement (Munich: Bertelsmann Group for Policy Research, 2002). A related problem which often receives much less attention in the external JHA agenda is the situation of persons who are in need of protection, and the difficult task of differentiating between purely economic or voluntary ‘irregular migrants’ and genuine refugees. On the intricate relationship between the Union’s internal security agenda and the international refugee regime see Lavenex, The Europeanisation of European Refugee Policies; on the effects of EU policies on the international agency in charge of refugee protection, the UNHCR, see J. van Klaauw, ‘European Asylum Policy and the Global Protection Regime: Challenges for UNHCR’, in Lavenex and Uçarer, Migration and the Externalities of European Integration, pp. 33–54. The corresponding document on the side of the Russian government is its ‘Medium Term Strategy for the Development of Relations between the Russian Federation and the EU (2000–2010)’ of November 1999. European Council, ‘Common Strategy of 4 June 1999 on Russia’, Official Journal of the European Communities, L 157/1, 24 June 1999 (1999/414/CFSP). European Council, ‘EU Action Plan on Common Action for the Russian Federation on Combating Organised Crime’, Official Journal of the European Communities, 2000/C106/5, 13 April 2000. It seems that some of the priorities of the Action Plan reflect not only JHA but also potential economic interests of the Union in Russia that might be negatively affected by organized crime. This is alluded to in the text of the Action Plan when it says on p. 7 that ‘organised crime is increasingly affecting legal business and commercial activities conducted between the Member States and the Russian Federation’. Swedish Presidency, ‘Presidency programme concerning external relations in the JHA field (2001–2002)’, 5146/01 Limite JAI 2, 11 January 2001.

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31 Council Regulation No. 99/2000 of 29 December 1999 concerning the provision of assistance to the partner states of Eastern Europe and Central Asia. 32 European Commission, ‘Tacis Regional Cooperation: Strategy Paper and Indicative Programme 2004–2006’, 11 April 2003. See also the ‘Tacis Programme Annual Report 1999, Report from the Commission’, COM(2000) 835 final. Although Belarus has been suspended from enhanced strategic cooperation, the fact that it did participate in an Interstate and Cross-border Cooperation programme, covering activities relating to border crossings, shows the importance attributed to this issue. 33 The growing emphasis on JHA has increased over the years: within the regional strategy it increased from 0.5 million euros in 1996 to 11.5 million euros in 2002 (compared to 16.5 million euros for environmental cooperation, which has the biggest budget in Tacis). The 2004–2006 regional planning foresees a division of a 49 million euro budget which will be divided with 55 per cent for organized crime and terrorism, 20 per cent asylum and immigration and 25 per cent borders. See European Commission, ‘Tacis Regional Cooperation: Strategy Paper and Indicative Programme. 2004–2006’. In addition, the national Tacis Indicative Programmes for Russia foresees another 40 million euros for JHA for 2004–2006 (approx. 10 per cent of the overall budget). 34 The member states of the NDI are Denmark, Estonia, Finland, Germany, Iceland, Latvia, Lithuania, Norway, Poland, Russia and Sweden. 35 T. Christiansen, F. Petito and B. Tonra, ‘Fuzzy Politics Around Fuzzy Borders: The European Union’s “Near Abroad” ’, Cooperation and Conflict, 35 (2000), 389–415; M.S. Filtenborg, S. Gänzle and E. Johansson, ‘An Alternative Theoretical Approach to EU Foreign Policy: “Network Governance” and the Case of the Northern Dimension Initiative’, Cooperation and Conflict, 37 (2002), 387–407. 36 European Council, ‘Common Strategy of 11 December 1999 on Ukraine’, Official Journal of the European Communities L 331/1, 23 December 1999 (1999/877/CFSP). 37 For example, Article 68 on money laundering and Article 79 on drugs. 38 European Council, ‘EU Action Plan on JHA in Ukraine of 10 December 2001’, Official Journal of the European Communities, J 2003/C 77/01, 29 March 2003. 39 Strategy on Integration of Ukraine to the European Union, approved by Decree of the President of Ukraine 615/98, 11 June 1998. 40 European Commission, ‘Tacis Regional Cooperation: Strategy Paper and Indicative Programme 2004–2006’. See also the ‘Tacis Programme Annual Report 1999, Report from the Commission’. 41 European Commission, ‘Moldova Country Strategy Paper’, p. 4. 42 Ibid., p. 15. 43 Participants are representatives of Albania, Australia (observer), Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Czech Republic, Denmark, Estonia, Finland, Former Yugoslav Republic of Macedonia, France, Georgia, Germany, Greece, Hungary, Latvia, Moldova, Netherlands, Norway,

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44

45

46 47

48

49 50

51

52 53

54

55 56

Poland, Portugal, Rumania, Russian Federation, Slovenia, Spain, Sweden, Switzerland, Turkey, United Kingdom, Ukraine, Yugoslavia, European Commission, United Nations High Commissioner for Refugees (UNHCR), International Organization for Migration (IOM), Stability Pact Support Unit, Inter-governmental Consultations (IGC) and the International Centre for Migration Policy Development (ICMPD), which acts as Secretariat. On the origins and activities of the Budapest Group see Lavenex, Safe Third Countries, and the reports of the Group’s annual meetings at http://www.icmpd.org/default.asp?nav=budapest&folderid=47&id=244. K. Schelter, Challenges for non- (and Not-Yet-) Schengen Countries, vol. 13, 15 March 2003, Geneva: paper presented at the Workshop on Managing International and Inter-Agency Co-operation at the Border, Geneva Centre for the Democratic Control of the Armed Forces, footnote 4. Grabbe, ‘The Sharp Edges of Europe’. The Southern Mediterranean group includes a very diverse set of countries: Algeria, Egypt, Israel, Jordan, Lebanon, Libya, Morocco, Palestinian Authority, Syria and Tunisia. Therefore, the countries of the Western Balkans are not part of this new initiative because of their inclusion in the Stabilization and Association Process that will eventually lead to EU membership. The remaining candidate countries – Turkey, Romania and Bulgaria – and the Southern Caucasus are also not included. European Council, ‘Presidency Conclusions’, Thessaloniki European Council, June 2003, p. 13. Commission of the European Communities, ‘Communication on Wider Europe – Neighbourhood: A New Framework for Relations with our Eastern and Southern Neighbours’, COM(2003) 104 final, 11 March 2003, p. 10. Council Conclusions on Wider Europe - New Neighbourhood of 16 June 2003 state that the EU proposal should establish a ‘differentiated framework which responds to progress made by the partner countries’ (p. 2). Commission of the European Communities, ‘Communication on Wider Europe’, p. 16. On the conditionality approach in relations with the candidate countries see F. Schimmelfennig and U. Sedelmeier, ‘Theorizing EU enlargement: research focus, hypotheses, and the state of research’, Journal of European Public Policy, 9 (2002), 500–528. Thus, the Country Strategy Papers 2002–2006 on Russia and Ukraine state on p. 19 that financing support to PCA implementation and WTO accession will be conditional on the overall commitment of Russia and Ukraine to making progress on the issues outlined, and that continued commitment in the approximation of legislation to the EU will be particularly important. NIS is the EU-jargon acronym for Newly Independent States referring to the Countries of the Commonwealth of Independent States (CIS). Quote from the ‘Tacis Regional Cooperation Strategy Paper’, p. 14.

6 A New ‘Area of Freedom, Security and Justice’ for the Enlarged EU? The Results of the European Convention Jörg Monar

Introduction Future historians are likely to regard the European Union’s creation of the ‘area of freedom, security and justice’ (AFSJ), with its large array of justice and home affairs (JHA) policy-making areas, as one of the most significant developments in the European integration process at the beginning of the twenty-first century. This may at first seem a slightly exaggerated statement, but it is supported by the following three considerations. First, the creation of the AFSJ touches upon essential functions and prerogatives of the modern nation-state. Providing citizens with internal security, controlling external borders and access to national territory, and administering justice have since the gradual emergence of the modern nation-state in the seventeenth to eighteenth century and its theoretical underpinning in the writings of Thomas Hobbes, John Locke, Montesquieu and Rousseau all belonged to the basic justification and legitimacy of the existence of the state. The fact that since the Treaty of Maastricht (1993) the EU has developed a steadily increasing role in this domain means that it has entered one of the last domains of exclusive national competence, not by replacing the state as a provider of internal security and justice, but by 110

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emerging as an increasingly important additional provider of these essential public goods. Second, the AFSJ touches upon a number of very sensitive political issues. The fight against crime and illegal immigration, ensuring that asylum systems are both fair and protected against abuse, and facilitating access to justice are issues which matter for European citizens. This is reflected in the importance which internal security issues have acquired in national election campaigns (the last French general election can be taken as one example among many), and also in opinion polls which indicate that internal-security-related issues rank very high in European citizens’ concerns. A 2003 Eurobarometer opinion poll indicates, for instance, that 80 per cent of EU citizens count terrorism among their primary fears and 71 per cent of them organized crime. A total of 90 per cent of them think that the fight against terrorism should be one of the priorities of the Union, 88 per cent think the same about the fight against organized crime and drug trafficking, and 81 per cent about the fight against illegal immigration.1 This means that by developing its role in this domain the EU is responding to some fundamental concerns (and expectations) of citizens that are more pronounced than in many other policy-making areas of the EU, including the common foreign and security policy. Third, the AFSJ has by now not only become a fundamental integration and treaty objective2 but also one of the major areas of ‘growth’ of EU action. According to statistics from the EU Council General-Secretariat,3 the JHA Council adopted no less than 500 texts in this field from 1 May 1999 (the date of the entry into force of the Amsterdam Treaty) to the end of December 2003. A range of new structures has also been created, with Europol and Eurojust being only the most prominent ones, and in the context of the JHA Council, ministers of the interior and justice now normally meet on a monthly basis, which makes the JHA Council one of the most frequently meeting Council formations. On two occasions so far (Tampere in October 1999 and Seville in June 2002), the Heads of State or Government of the Union have dedicated European Council meetings almost exclusively to JHA issues. The EU acquis in justice and home affairs is among the fastest-growing areas of legal action, and although progress is sometimes slow, the EU’s agenda in the JHA domain is now wideranging and ambitious to an extent which would have been difficult to imagine at the beginning of the 1990s.

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Given the importance gained by the AFSJ as a policy-making area of the EU, the European Convention, which was entrusted with drawing up a draft constitutional treaty for the EU, obviously had to give considerable room to this domain in its work. And so it did: its Presidium defined a specific set of questions and challenges in the JHA domain,4 and a special working group (‘X’) then looked at reform needs and made a range of substantial proposals.5 There were several major, farreaching initiatives (such as the ambitious Fischer/de Villepin proposals of November 2002)6 and, finally, numerous changes and new elements in the AFSJ field were introduced in the final draft of the constitution adopted by the Convention in July 2003.7 In view of the prominence given to the AFSJ in the work of the Convention, it seems worth asking to what extent the results – that is, the provisions of the draft constitution – are likely to create a new basis and framework for the AFSJ in the enlarged Union if the member states eventually agree on their adoption. This question is all the more pertinent as the Treaty of Amsterdam, which entered into force in 1999, had already brought very extensive reforms together with a long list of objectives which are still far from being fully implemented. After an analysis of the content of the proposed reforms, this chapter will provide an assessment of the ‘added value’ they are likely to bring with regard to both the current framework and enlargement as well as looking at their deficits, and also the prospects for their adoption after the failure of the December 2003 Brussels summit.

The new legal framework By far the most fundamental change the draft constitution brings for the AFSJ is the recasting of its overall legal framework. The existing division between the EU’s three ‘pillars’ is replaced by a single legal framework in a single legal text. This step will remove the existing split in the JHA domain between, on the one hand, asylum, immigration, border controls and judicial cooperation in civil matters, which currently fall under Title IV of the EC Treaty (the ‘first pillar’) and, on the other hand, judicial cooperation in criminal matters and police cooperation which fall under Title VI of the EU Treaty (the ‘third pillar’). The formal abolition of the ‘pillar’ division will put an end to the need to adopt ‘parallel’ legislative acts under the different

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pillars in certain domains with ‘cross-pillar’ implications (such as money laundering), and will reduce the potential for controversies over the appropriate legal basis. It will also put an end to the artificial separation of decision-making structures between first- and third-pillar matters in the Council, and will facilitate the negotiation and conclusion of agreements with third countries on cross-pillar matters. In addition, the new single legal framework also means that the Union will be able to act internally and externally8 as a single legal actor with a single set of legal instruments, instead of the current division between first- and third-pillar instruments. This will be an important contribution to a more coherent and clear-cut legal acquis. Combined with this is the abolition of most of the restrictions and distinctions between the role of the European Court of Justice in the JHA domain under the two pillars (see below). Yet the major progress made by the abolition of the ‘pillar’ structure is partially undermined by a number of special provisions for the individual JHA policy areas. According to Article III-165, the European Commission will have an exclusive right of initiative for asylum, immigration, border control and judicial cooperation in civil matters, but will have to share the right of initiative with the member states in police and judicial cooperation in criminal matters. Whereas in the aforementioned areas (asylum etc.) the draft constitution provides with one small exception (family law) for qualified majority voting, substantial parts of police and judicial cooperation in criminal matters will still be governed by the existing unanimity requirement. A similar distinction applies to the role of the European Parliament, which is granted co-decision on most of the issues that were previously in the first pillar, but is limited to assent or consultation procedures on quite a number of issues that were previously in the third pillar. This means that from an institutional and procedural point of view, the old ‘pillar division’ will to some extent continue to exist. This ‘hidden’ continuation of the pillar separation could lead to problems in adopting cross-cutting packages of measures because of differences in the procedures, majority requirements and level of involvement of the Parliament. It also significantly reduces the transparency of the provisions relating to the AFSJ and, of course, runs counter to the principle of a single legal framework. A further weakness of the new single legal framework is the absence of any clearer definition of the objectives of the AFSJ as

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a fundamental treaty and integration objective. As fundamental public goods, ‘freedom’, ‘security’ and ‘justice’ are such broad objectives that a somewhat more precise definition of the AFSJ’s aims would have been highly appropriate. The draft constitution has done this, for example, for the Common Foreign and Security Policy in Article I-39. However, Article I-3(2) dealing with the AFSJ contains only a reference to an EU ‘without internal frontiers’ and establishes a link between the AFSJ and the single market with its ‘free and undistorted’ competition. This is unfortunate and seems slightly misleading since the AFSJ, as a political project, has long outgrown the Schengen objective of allowing for the abolition of internal border controls. Its links with the economic aims of the single market are therefore now of a rather peripheral nature. The language used here seems to hark back to the predominantly economic agenda of the 1980s, which is rather surprising for the product of a Convention on the ‘future of the European Union’. The ‘specific provisions’ on the AFSJ in Article I-41 merely contain some general guidelines for its construction (trust building etc.), and add little to a clarification of its basic concept and aims. It would appear particularly regrettable that the draft constitution has missed the chance to spell out the need for the AFSJ to develop in a balanced fashion, with equal consideration given to all three of the public goods – freedom, security and justice. So far, around 80 per cent of the measures adopted have been directly or indirectly linked to internal security – and correspondingly few to ‘freedom’ and ‘justice’.

The Charter of Fundamental Rights as part of the legal framework Taking a broader view of the draft constitution, it fully incorporates the Charter of Fundamental Rights in Part II, and this can also be considered an integral part of the new legal framework it proposes for the AFSJ. There can be no doubt that measures in the domain of justice and home affairs affect the fundamental rights of individuals in a much more direct way than, for instance, most of the single market measures. By fully incorporating the Charter, the draft constitution clearly creates a better basis for the comprehensive protection of fundamental rights at EU level, as well as through constitutional law in the member states and international legal instruments such as the

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European Convention on Human Rights. It is true that one could consider certain fundamental rights – such as non-discrimination – to be adequately guaranteed already by the current EC legal order, but there are nevertheless still a number of gaps with relevance for JHA measures that will be filled by incorporating the Charter of Fundamental Rights in the draft constitution. This applies, in particular, to the right to the protection of personal data (Article II-8), which is of increasing importance, given the proliferation of databases and exchange systems in the field of the AFSJ (Schengen Information System, Europol, Eurodac, etc.) and the rapidly developing cooperation with third countries, such as the Europol–USA agreement of December 2002 which provides for the exchange of personal data. The judicial rights laid down in Title VI of the Charter of Fundamental Rights are also of considerable relevance for the AFSJ. By including the right to legal aid (Article II-47, last sentence), the principle of proportionality between offence and penalty (Article II-49(3)) and the right not to be tried or punished twice for the same criminal offence (ne bis in idem principle, Article II-50), these judicial rights clearly go beyond mere minimum guarantees, such as the right to effective remedy and defence, or the principles of presumption of innocence and of legality. Taken together, they define important elements of a common approach by member states to criminal justice, and they could well serve as important foundation stones for the gradual creation of an EU criminal justice system. The incorporation of the Charter of Fundamental Rights is also important for the development of external relations in the JHA domain. The right to life and the prohibition of the death penalty (Article II-2), the right to the integrity of the person (Article II-3), the prohibition of torture and inhuman or degrading treatment or punishment (Article II-4) and the right to an independent and impartial tribunal previously established by law could clarify, and help to strengthen, the Union’s position when negotiating with third countries on legal assistance and extradition agreements. It should be recalled here that the problem of the death penalty and the muchcriticized US practices in the Guantanamo Bay prison camp were among the most difficult issues in the negotiations on the EU–US legal assistance and extradition agreements signed on 25 June 2003.9 It is also worth mentioning that the preamble of the Charter contains a special reference to the AFSJ as one of the elements through

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which the Union places the individual ‘at the heart of its activities’. While this sounds acceptable as a general affirmation of good will, one might have wished for a slightly stronger reference to the fact that JHA cooperation in the context of the AFSJ can, and should, actually make a contribution to the effective protection of the Charter rights within the EU. It should also be noted that the draft constitution does not provide for the right of individuals to bring direct actions before the Court of Justice on fundamental rights issues. As a result, the protection of fundamental rights by the Court will normally be exercised via the preliminary rulings procedure, which requires cases first to be brought before national courts.

The revised policy-making objectives The first thing to note about the policy-making objectives of justice and home affairs cooperation is that the draft constitution maintains the Treaty of Amsterdam approach of providing detailed lists of individual objectives for each of the main policy-making areas which almost read like legislative programmes. This is regrettable. First of all, it is most unusual for constitutional texts to include such detailed programmatic elements as these can quickly become outdated, and drastically reduce the transparency of the text. Then there is also the disadvantage that these lists of objectives can be interpreted as excluding everything from EU action that is not explicitly mentioned. This is all the more relevant because the draft constitution reinforces the principle of conferral: it explicitly states that all competences not (explicitly) conferred upon the Union remain with the member states (Article I-9(2)). The policy-making objectives currently contained in Title IV TEC and Title VI TEU are both amended and added to by the draft constitution. Only the more important changes can be mentioned here. Policies on border checks, asylum and immigration Concerning border controls, the draft constitution provides for a ‘policy’, rather than ‘measures’ only, as at present. This would appear to imply a higher degree of integration, although the term ‘common policy’ – not very popular in some capitals – has been avoided. The most significant innovation is the gradual establishment of an ‘integrated management system for external borders’ (Article III-166(1)(c)

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and (2)(d)). This reflects the member states’ recent move towards much more intensified cooperation on external border issues which, driven in part by the challenges of enlargement, had already come out very clearly in the Council plan for the management of external borders10 and the Seville European Council conclusions (both June 2002). The project of creating a Common European Border Guard or Border Police, which also had some support in the Convention, has not found its way into the draft, but the term ‘integrated management’ is wide enough not to exclude it in the more distant future. As regards asylum, the draft constitution introduces for the first time the traditionally highly charged term ‘common policy’ in Article III-167(1). Yet the use of this term is less revolutionary than it might seem, since the European Council of Tampere in October 1999 had set asylum policy objectives so ambitious that the term ‘common policy’ could have been used ever since if some member states had not preferred the less charged term ‘common asylum system’. Nevertheless, the formal introduction of a ‘common policy’ reinforces the shared ambitions in this area, and this is indeed added to by a number of further objectives. For example, the draft constitution introduces a ‘uniform status of asylum’ (Article III-167(2)(a)), a ‘uniform status of subsidiary protection’ (Article III-167(2)(b)), common procedures for the granting and withdrawing of asylum or subsidiary protection status (Article III-167(2)(d)) and ‘partnership and cooperation’ with third countries for the purpose of managing inflows of people applying for either status (Article III-167(2)(g)). Although these objectives are to some extent already to be found in the current Article 63 TEC, the common uniform status envisaged clearly goes beyond the more fragmentary current treaty provisions, which were largely based on the approach of common minimum standards only. The explicit empowering of the Union to take action in relations with third countries seems a useful and even necessary complement to the substantial internal objectives in this field. The term ‘common policy’ is also used in the area of immigration policy, which is even more surprising than in the area of asylum policy. The draft constitution seems to expect the Union to deliver on issues in which many member states have so far largely failed to develop effective policy responses. It talks of ‘efficient management of migration flows’, ‘fair treatment’ of legally resident third-country nationals, and preventing and enhanced combating of illegal

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immigration and trafficking in human beings (Article III-168(1)). These very ambitious objectives are unfortunately not matched by a corresponding increase in the powers of the Union. The only new provisions made are for taking measures against illegal immigration, unauthorized residence, trafficking in person (Article III-168(2)(c) and (d)) as well as concluding readmission agreements with third countries (Article III-168(3)). However, these are all areas in which the Union is already active. Provision is also made for measures promoting the integration of third-country nationals, but these have to exclude any harmonization of the laws and regulations of the member states (Article III-168(4)). It seems rather doubtful whether much of a ‘common policy’ can emerge on that basis. The most significant restriction on a ‘common immigration policy’, however, is imposed by Article III-168(5), which provides that member states will fully keep their right to determine ‘volumes of admission’ of third-country nationals for work purposes, whether employed or self-employed. This provision takes one of the most crucial aspects of any policy on legal immigration – the decision on numbers – out of the sphere of potential EU action. This will clearly not help the development of a common approach to opening up more channels for legal immigration, which the Commission had already advocated in 2000 because of the dramatic demographic changes within the EU. It could well mean that the ‘common immigration policy’ of the EU will remain, as at present, largely a policy on illegal immigration. One has to ask oneself, however, whether in a Union of 25 member states where there are major differences in the historical, cultural and socio-economic context of national immigration policies and, indeed, very different immigration pressures, a fully fledged ‘common policy’ including legal immigration is feasible. Yet the draft constitution’s use of the term ‘common policy’ in relation to immigration policy matters hardly seems justifiable in view of the limitations placed on it. Judicial cooperation in civil matters In this area, the current catalogue of aims in Article 65 TEC is added to by the objectives of providing a ‘high level of access to justice’, developing alternative methods of dispute settlement, and supporting the training of the judiciary and judicial staff (Article III-170(2)(e), (g) and (h)). As the Union has already become active in all these areas, this largely represents a codification of existing practice, although it

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creates a clearer basis for future action. What is important is that by virtue of Article III-170(1), cooperation in civil matters is to be based on the principle of mutual recognition, but ‘may’ also include measures of approximation of national laws, which introduces a harmonization dimension. Judicial cooperation in criminal matters The draft constitution increases the number of objectives from the current four (Article 31 TEU) to twelve. This number would be even higher if one included the tasks defined for Eurojust and the European Public Prosecutor’s Office. What has been added is, in particular, the possibility of adopting framework laws on minimum rules regarding the mutual admissibility of evidence, the rights of individuals in criminal procedure, the rights of the victims of crime and other ‘specific aspects’ of criminal procedure (Article III-171(2)), the considerably increased list of the areas of ‘particularly serious crime’ for which minimum rules on the definition of criminal offences and sanctions can be established (Article III-172(1)), the authorization of EU action in the field of crime prevention (Article III-173) and the possibility of establishing a European Public Prosecutor’s Office (Article III-175). All these are innovative elements, but they also raise a number of questions. While one may welcome the inclusion of criminal procedure in the domain of cooperation defined by the treaty, this could also expose the tensions between the civil law and common law systems used in different countries of the Union. Rather than establishing a rather incomplete list of areas for potential EU action, it might have been more appropriate to open up for cooperation the whole area of criminal procedure, subject to a unanimity requirement to protect the interests of member states with fundamentally different legal traditions. The extension of the list of forms of ‘serious crime’ eligible for EU legislative action has to be seen as a step forward, especially as regards cross-border crimes such as trafficking in human beings and computer crime, which are rapidly gaining in importance. One can, of course, question the approach of listing individual crimes as this will necessitate a cumbersome separate decision-making process if other forms of crime need to be added at a later stage. There can be no doubt that EU action in the field of crime prevention can add a useful new dimension to EU measures in the fight against cross-border

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crime, but the scope of this action is limited by the exclusion of any approximation of national legislative and regulatory provisions (Article III-173). The provision on the possible – but not mandatory – establishment of a European Public Prosecutor’s Office is one of the most controversial ones in the draft constitution and has encountered serious opposition, especially from the British government. Although a reasonable case can be made for a European ‘prosecution service’ for investigating, prosecuting and bringing to justice offences against the Union’s financial interests – especially if the prosecutors still operate under national law when in national courts – the inclusion in the Office’s scope of ‘serious crimes affecting more than one member state’ seems very broad and daring. From a political point of view, the resistance to such an office in some member states could probably be reduced significantly if its scope were limited to the protection of the Union’s financial interests. As regards Eurojust, Article III-174 largely codifies existing functions, except that Eurojust can also ‘initiate’ criminal prosecutions conducted by national authorities. This is not currently provided for by the Eurojust Decision,11 but could help make the best possible use of the information and expertise available to Eurojust in the fight against cross-border crime. Police cooperation The draft constitution streamlines and simplifies current provisions on general police cooperation while leaving their substance largely unchanged (Article III-176). This is one of the few instances where the Convention has actually succeeded in simplifying provisions, which was part of its original mandate. There are some clearly innovative elements as regards Europol. According to Article III-177(2)(b), Europol can not only be vested with coordinating functions but can also have as its task the ‘organization and implementation’ of investigative and operational action carried out jointly with national authorities. At first sight this may appear like a significant step forward in creating an ‘operational’ role for Europol. However, this remains controversial in several member states, and in many cases substantial changes to national legislation would need to be introduced to allow Europol officers to take an active role in implementing policing measures. Yet Article III-177(3) severely restricts what would appear to be a stronger operational role for Europol by reserving ‘coercive

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measures’ exclusively to national authorities, and by providing that any operational action by Europol must be carried out ‘in liaison and in agreement with’ national authorities. One can detect here a slight tension between the attempt, on the one hand, to strengthen Europol’s role, and, on the other hand, to remove grounds for fundamental objections from the member states. The underlying idea seems to be to make a distinction between powers of investigation, with which Europol should to some extent be vested, and operational law enforcement measures, which should remain with national authorities. This, however, should have been made much more clear in the relevant provisions, which have a rather tortuous wording. Interestingly, the Convention seems to have been willing to go much further with operational powers on the prosecution side, as the provisions on the European Public Prosecutor’s Office show, than on the policing side. This asymmetry will clearly not assist effective cooperation between European police and prosecution authorities. A further new element is the provision for a European law or framework law on the conditions under which national law enforcement authorities may operate on the territory of another member state (Article III-178). This has been a notoriously difficult issue for several decades, with major differences persisting between national legislation which, in many member states, continues to impose very tight restrictions on the movements of police officers from other member states within the national territory. Not surprisingly, unanimity is required in this sensitive area – which may delay adoption of common legislation for many years to come.

Division of powers and subsidiarity According to Article I-13(2) of the draft constitution the AFSJ is a domain of ‘shared competence’, that is, a domain in which the member states shall exercise their competence only to the extent that the Union has not exercised, or has decided to cease exercising, its competence. This means to some extent a strengthening of EU competence as Union action in the JHA domain will pre-empt further national measures in this domain. This is currently far from clear, at least in the area of the ‘third pillar’. As a result of this pre-emptive effect, member states could well find it more difficult to take action

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at national level on issues such as illegal immigration, even if the Union has only taken partial action. In the division of powers between the EU and its member states, the Union side is strengthened in another respect. Article I-9(1) and (2) places a strong emphasis on the principle of conferred competences. This appears to make the gradual extension of ‘shared’ EU powers more difficult. Yet Article I-17(1) has a ‘flexibility clause’12 that allows EU action beyond explicitly mentioned powers if such action ‘should prove necessary … to attain one of the objectives set by the constitution’. As pointed out earlier, the AFSJ is indeed one of these fundamental ‘objectives’ listed in Article I-3, but lacks any more precise definition of its content and scope. At least in principle, this provision could offer the EU quite a wide margin for extending its scope of action in the JHA domain. Apart from the principle of conferred competences, however, the draft constitution contains at least two other elements that are likely to support a restrictive interpretation of Union powers in the AFSJ domain. One of those is the revised subsidiarity principle of Article I-9(3) which provides that the Union shall now act in domains outside exclusive Union competence only ‘if and insofar as the objectives of the intended action cannot be sufficiently achieved by the member states, either at central or at regional and local level’. Apart from generally increasing the burden of proof for EU action in the JHA domain, the EU institutions will now also have to take into account the regional level which, especially in the case of the German Länder, can have quite substantial powers to act on a number of JHA issues. It should also be noted that Article III-160 specifically mentions the role of national parliaments in ensuring that legislative initiatives in the areas of police and judicial cooperation in criminal matters comply with the principle of solidarity in accordance with the ‘early warning’ procedure provided for by the Protocol on the application of the principles of solidarity and proportionality. Although this controlling role of national parliaments applies in principle to all legislative initiatives, the fact that it is specifically mentioned in respect of these areas of JHA cooperation could increase the pressure for new measures to be justified. The second element which could contribute to a restrictive interpretation of Union powers is the new principle that the Union ‘shall respect’ the ‘essential State functions’ of its members, which is

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introduced by Article I-5(1) of the draft constitution. These functions explicitly include ‘maintaining law and order’ and ‘safeguarding internal security’. Article III-163 takes up this principle again up by laying down that JHA provisions shall not affect the exercise of national responsibilities with regard to maintaining law and order and safeguarding internal security. As most of the areas covered by the AFSJ are directly or indirectly linked to public order and internal security issues, these articles could provide strong arguments for member states opposing an extension of EU action in certain fields of the JHA domain. On the whole the picture regarding the division of powers is therefore a rather mixed one, with the draft constitution providing both the potential to strengthen the Union side of the division of powers scale, and new grounds for the member states to restrict Union action. All this looks like a recipe for controversies which may well come up before the Court of Justice.

Solidarity as a new integration principle The introduction of an explicit principle of solidarity into the context of JHA cooperation is one of the most significant innovations of the draft constitution. If one takes the idea of the AFSJ as a single ‘area’ in which member states seriously want to find common responses to common challenges, then it would seem only logical that member states also show solidarity with each other when carrying the financial burden of these common responses. An obvious example of the need for solidarity is the protection of the EU’s external borders, where member states face different challenges and problems because of their varying geographical positions, the result being that some face a significantly bigger bill for ensuring the high common standards of external border security agreed at EU level. The question of solidarity is all the more important in view of the accession of ten new member states in 2004, some of which still lack the capacity to implement the external border security standards of the EU (and Schengen zone). This is particularly problematic given that many of them are responsible for the EU’s new eastern border. The draft constitution introduces the principle of solidarity no less than four times in areas of relevance to JHA cooperation. These are the framing of a common policy on asylum, immigration and

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external border controls (Article III-158(2)), the adoption of provisional measures for the benefit of member states experiencing an emergency situation caused by a sudden inflow of third-country nationals (Article III-167(3)), the validity of the ‘principle of solidarity and fair sharing of responsibility, including its financial implications, between the member states’ for the whole of Section 2 of Chapter IV (policies on border checks, asylum and immigration, Article III-169) and – outside the provisions on the AFSJ – the general solidarity clause of Article I-42 on the mobilization of all instruments at the Union’s disposal to prevent terrorist threats, to protect democratic institutions and the civilian population, and to assist a member state in the event of an attack. Although different meanings can be given to the term ‘solidarity’, the formal introduction of the principle nevertheless marks a substantial step forward towards a system of effective burden sharing – with the significant inclusion of the use of EU budgetary means. It is regrettable, however, that the solidarity principle has not simply been extended to all domains of the AFSJ, as the need for solidarity can also emerge in other fields such as, for instance, the fight against organized crime, where at least some of the new member states still lack sophisticated investigation equipment.

The reforms of the decision-making system Much attention was given before and during the work of the Convention to the deficits of the decision-making system for the AFSJ, and in particular to the fact that the requirement for unanimity was one of the reasons that insufficient progress had been made in some areas. The draft constitution therefore provides for a number of substantial reforms in decision making. When it comes to voting requirements, there has been a major breakthrough towards qualified majority voting. Co-decision by the European Parliament with majority voting in the Council becomes the standard decision-making procedure for the domain of JHA cooperation. There are a number of exceptions. Unanimity will still apply to measures concerning family law with cross-border implications (Article III-170(3)), the establishment of minimum rules concerning ‘other’ (not explicitly mentioned) aspects of criminal procedure (Article III-171(2)(d)), the identification of ‘other’ (that is,

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not already explicitly mentioned) areas of serious crime for which minimum rules concerning the definition of criminal offences may be introduced (Article III-172(2)), the European law on the establishment of the European Public Prosecutor’s Office (Article III-175(1)), legislative measures regarding operational cooperation between national law enforcement authorities (Article III-176(3)) and the laying down of the conditions and limitations under which national law enforcement authorities may operate in the territory of another member state (Article III-178). While these are all clearly important and sensitive areas, these exclusions from majority voting should not conceal the fact that the draft constitution introduces majority voting on a very broad scale indeed, even in areas such as criminal justice cooperation, which at the last IGC (2000) were still far from being considered eligible for majority voting. While this extension of majority voting may be regarded as a significant change, it also raises certain questions. On the one hand there can be no doubt that more majority voting on JHA matters will increase the Union’s decision-making capacity. The last few years have amply demonstrated, especially in the domain of asylum and immigration, that unanimity all too often means deadlock or major delays, and even where decisions are taken, agreement is on the lowest common denominator. Given the major 2004 enlargement, and likely further rounds of enlargement, the advantages of increasing decision-making capacity through majority voting are considerable. One the other hand, however, this comes at a price which some member states may feel is too high. The draft constitution provides for majority voting in areas where Union measures cut deeply into national legal systems and traditions, as well as national concepts of law and order. Examples are the establishment of rules and procedures to ensure the recognition ‘throughout the Union’ of ‘all forms’ of judgments and judicial decisions (Article III-171(1)(a)), the establishment of minimum rules concerning the definition of criminal offences in areas of serious crime (Article III-172) and the rules regarding the functions and the scope of action of the European law enforcement agencies Europol and Eurojust (Articles III-174 and III-177). Measures regarding the collection, storage, processing, analysis and exchange of ‘relevant information’ – an area of particular sensitivity to citizens – are also subject to majority voting. It is legitimate to ask whether the advantages of increased decision-making

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capacity outweigh the cost of some member states potentially being outvoted in the Council and forced to introduce substantial changes which could go against the grain of their national legal systems. At least in some areas, differences between national legal systems and concepts of public order are so marked that the costs of adaptation for outvoted member states could be very high indeed. The different approaches to violent demonstrators or drug addicts are only two examples among many. Although this applies particularly to police and judicial cooperation criminal matters, the very different challenges the member states face in the field of immigration also raise questions about whether changing to majority voting on the conditions of entry and residence, and the rights of legally resident third-country nationals (Article III-168(2)(a) and (b)), is fully justified.13 There have been, inter alia, major concerns in Germany about this issue. Another aspect of the decision-making system to which the draft constitution introduces changes is the right of initiative. While the European Commission is vested with an exclusive right of initiative for border checks, asylum, immigration and judicial cooperation in civil matters, the draft provides that it has to share its right of initiative in the areas of police and judicial cooperation in criminal matters with the member states (Article III-165). Those, however, can only introduce initiatives with at least one-quarter of their total number (that is, seven after the 2004 enlargement). This provision would seem to be a good compromise between the preservation of a right of initiative of the member states (which have introduced a number of useful proposals during the last few years) and the need to prevent a proliferation of initiatives from individual member states which are all too often inspired by purely national interests. The one-quarter requirement could lead to a healthy concentration of national initiatives. The structure of the Council is also of importance for the Union’s decision-making capacity in the context of the AFSJ. The introduction of the ‘Legislative and General Affairs Council’ which – when acting in a legislative capacity – ‘shall include one or two representatives at ministerial level with relevant expertise’ (Article I-23(1)) would in principle allow all relevant JHA decisions to be taken in this Council formation. However, because of the large number of issues on the JHA Council’s agenda during the last few years, and their

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technical nature, it might be more practical to include the JHA Council among the ‘further formations’ in which the Council, by decision of the European Council, can meet (Article I-23(3)). The senior ‘Article 36 Committee’, which currently coordinates Council work in the context of the third pillar, is no longer provided for in the draft constitution, which leaves responsibility for legislative coordination solely with COREPER (Committee of Permanent Representatives). Yet Article III-162 provides for the establishment of a standing Council committee in charge of promoting and strengthening operational cooperation on internal security. As operational cooperation between national authorities is crucial for the effective implementation of EU policies in the JHA domain, but by its nature very different from the legislative process, it certainly makes sense to establish a separate coordinating committee for this task, provided that COREPER – as the supreme decision-preparing body below the ministerial level – can still ensure overall coherence and consistency. One may only ask whether it is actually necessary to formally provide for such a committee in a ‘constitution’.

Implementation The effective and comprehensive implementation of decisions is of particular importance in the JHA domain. Doubts about effective implementation of certain measures in other member states can increase security risks and therefore make member states more reluctant to engage in common measures. They drastically reduce the trust between national law enforcement and judicial authorities, and this is crucial for effective cross-border cooperation. It therefore seems very sensible – though again, not absolutely necessary in a ‘constitution’ – that the draft provides for adoption of arrangements for the ‘objective and impartial evaluation’ of the implementation of Union policies in the AFSJ context (Article III-161). The model for this provision has clearly been the current ‘collective evaluation’ procedures by which member states assessed the progress of the applicant countries in the JHA area. Especially in the Schengen context, this led to some positive results. Such ‘peer review’ monitoring of implementation complements the much harder and more inflexible formal treaty infringement proceedings before the Court (Articles III-265 and 267).

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Democratic and judicial control As a domain which in many cases directly affects citizens’ interests and rights, effective democratic and judicial control is of obvious ‘constitutional’ importance to JHA cooperation. The draft constitution considerably strengthens the role of the European Parliament which gains co-decision or – in the case of harmonization measures in the field of criminal law (Article III-171(1)) and the establishment of the European Public Prosecutor’s Office (Article III-175) – at least ‘consent’ powers in most of the fields covered by the AFSJ. Only in very few fields will the European Parliament (EP), according to the draft constitution, still be limited to its current purely consultative role. These include administrative cooperation between member states (Article III-164), measures in favour of member states facing an emergency situation because of a sudden inflow of third-country nationals (Article III-167(3)), measures concerning family law (Article III-170(3)), operational cooperation between national law enforcement authorities, and the definition of the conditions under which national authorities may operate in the territory of another member state (Article III-178). While one can see a certain logic in limiting the EP’s role under provisions such as Articles III-164, 176(3) and 178, which largely concern the role of national authorities, this is much less evident in the case of measures in the civil law domain, which can affect all EU citizens, and in the case of ‘solidarity’ measures in favour of member states facing a mass influx of third-country nationals, which might involve substantial EU budgetary funds. Nevertheless, the draft constitution brings a clear breakthrough for democratic control at the European level as the EP becomes a real co-legislator for the further construction of the AFSJ. This breakthrough is further enhanced through the EP’s explicit right to information about evaluation of the implementation of Union policies (Article III-161) and the proceedings of the standing committee on operational cooperation (Article III-162), as well as its involvement in the evaluation of the activities of Eurojust (Article III-174(2)) and Europol (Article III-178). A slight question has to be raised, however, over the EP’s capacity to cope fully with all these increased powers. Already under the current ‘light’ consultation procedure the Parliament occasionally had to struggle to keep pace with the sometimes massive legislative

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agenda of the JHA Council. One should also note that the EP will have no role in the definition of the strategic guidelines for legislative and operational planning within the AFSJ by the European Council (Article III-159), and that no provision has been made for giving the Parliament a greater say on the multi-annual action plans of the Council which, although non-legislative in nature, have done much to shape the AFSJ during the last few years. The position of national parliaments is also significantly strengthened by Article III-160(1), which not only gives them a particular responsibility for ensuring EU compliance with the subsidiarity principle in police and judicial cooperation in criminal matters, but also grants them the same rights of participation the EP has regarding the evaluation of the implementation of Union policies, the proceedings of the standing committee on operational cooperation and the evaluation of the activities of Eurojust and Europol. Making full use of these new opportunities for scrutiny will require quite substantial reorganization in some national parliaments, not all of which currently have effective monitoring procedures for EU JHA measures in place. Regarding judicial control, it has already been pointed out above that as part of the formal abolition of the pillar structure most of the remaining ‘pillar-specific’ restrictions on the role of the Court of Justice, which is called ‘High Court’ in the draft, have been removed. There is only one exception. According to Article III-283, the High Court’s jurisdiction will not extend to operations carried out by the police or other national law enforcement services and to measures under national law regarding the maintenance of law and order and the safeguarding of internal security. This restriction is in line with the principle of the ‘respect’ of ‘essential State functions’ in maintaining law and order and safeguarding internal security in Article I-5(1), and should not unduly restrict the High Court’s power of judicial review of Union measures. The removal of all other restrictions has to be welcomed as a significant – and overdue – step towards comprehensive judicial control and protection within the AFSJ. Yet the burden of cases arising from JHA issues could significantly increase in the future, which may make it necessary to use the possibility opened by Article III-264 to establish one or more specialized courts of first instance attached to the High Court for certain classes of action, or proceedings brought in specific cases. Asylum and immigration as

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well as areas of civil law and criminal cooperation would be the most obvious areas for the establishment of such specialized courts.

Overall assessment The reforms of the draft constitution are so substantial that they create a new basis and framework for the further development of the AFSJ. The most significant elements of change are the formal abolition of the three ‘pillars’, the incorporation of the Charter of Fundamental Rights, the extension of the policy-making objectives, the introduction of solidarity as an integration principle and the breakthroughs on majority voting and parliamentary participation. Taken together these elements constitute clear ‘added value’ to the existing framework. They create significant potential for the further development of the AFSJ as a major political project of the EU, both in terms of substantial progress with JHA policies and more guarantees for citizens over protection of their rights and democratic control. Several elements of the draft constitution are of particular relevance to the enlarged EU. The reforms of the decision-making procedures would certainly enhance the decision-making capacity of the EU in the JHA domain, and this is clearly a major necessity given the increased diversity within an AFSJ of 25 member states. The incorporation of the Charter of Fundamental Rights, with its range of significant rights in the JHA domain, also gives an important sign to citizens in the new member states that the AFSJ is not only about law enforcement and tight border controls, but also about common values and the rights of individuals. The strengthening of the EU’s possibilities to act in the areas of cross-border policing, prosecution, crime prevention and minimum rules concerning the definition of criminal offences and sanctions should also be welcomed, given how attractive the new member states are to organized crime groups. This was, once again, highlighted in the 2003 EU Organized Crime Report.14 The codification of collective evaluation as a major principle in the JHA domain should also help in addressing some of the inevitable difficulties the AFSJ will face because several of the new member states lack implementation capability. Finally, the introduction of the solidarity principle – with the explicit inclusion of financial solidarity – could become the basis of a more effective system of burden sharing within the AFSJ which is clearly needed in the light

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of the major burden the new member states have to take on in protecting the eastern land borders of the AFSJ. Yet the draft constitution also has its flaws. Perhaps these were inevitable in a Convention which was permanently torn between the ambition to serve as a pioneer for a stronger and truly ‘constitutionalized’ Union on the one hand, and the desire to arrive at a draft which would as far as possible satisfy all the national governments so that it had a chance to pass the Intergovernmental Conference (IGC) largely intact. In any case, the flaws are there, and they are far from minor. First, the ‘area of freedom, security and justice’ remains very much an empty shell in terms of fundamental political objectives. A jungle of individual policy-making objectives does not replace a strategic vision of what the AFSJ is all about. Is it essentially an internal security project? Is it much more than that? Is it ultimately only a general enabling objective to allow ministries of interior and justice to cooperate on whatever they want, whenever they want? This draft constitution does not provide an answer to these questions and, worse still, contains no vision of what this major integration project should ultimately become. Second, this draft constitution – perhaps because of the lack of an underlying common vision – is seriously unbalanced. On the one hand, in some areas it is daring to the point that one can seriously question whether so much ‘progress’ is actually justifiable at this stage of the integration process because of the likely consequences for still highly different national legal and public order systems. The broad remit for the European Public Prosecutor’s Office and majority voting on harmonization measures in the criminal justice area are key examples of this. On the other hand, however, there are plenty of places where the draft is extremely conservative, allowing for hardly any new developments. Decision-making rules on family law and the provisions on Europol are key examples of this. Altogether, it is the recipe for ample controversies, uneven development of the AFSJ and confusion over its final objectives. Third, in far too many instances the text of this draft constitution bears the mark of cumbersome compromises. As a result, the provisions of the AFSJ – especially in Part III of the draft – have become even less transparent than in the Treaty of Amsterdam, which in this respect was much maligned. It is true that the ‘pillars’ have been formally abolished, but a number of special decision-making rules lend

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them a ghostly after-life which overshadows and blurs the unity of the AFSJ. More general provisions in one paragraph are in many cases made subject to detailed special rules which partially restrict or change the meaning of the more general provision, or obscure the general rationale of Union action in the respective field. The misleading use of the term ‘common policy’ in the immigration field and the extraordinarily complex provisions on judicial cooperation in criminal matters in Articles III-171 and 172 are striking examples of this. In the field of JHA cooperation, the Convention has clearly failed to simplify current treaty provisions and to make them more transparent, which was, after all, an important part of its mandate. If we add the protocols which the Convention has not dealt with (on the British, Irish and Danish opt-outs, for instance), the corpus of provisions on AFSJ will be at least as complex and impenetrable as before. Although the creation of a single legal framework and the incorporation of the Charter of Fundamental Rights can be regarded as important elements of ‘constitutional progress’, the flaws make the Convention’s draft constitution look very much like the result of an ‘ordinary’ treaty-reforming Intergovernmental Conference, with all its complex compromises and incremental elements of progress. As the draft remains subject to approval and amendment by the IGC, there can be not the slightest doubt that the legal framework for the reformed AFSJ will, as before, remain an international treaty agreed on by national governments, and not a ‘constitution’.

Prospects after the failure of the first IGC round in December 2003 As a result of the failure of the first round of the IGC at the December 2003 Brussels summit, which was mainly due to the controversy over the weighting of national votes under the qualified majority rule, the fate of the Convention’s draft constitution is still rather uncertain at the time of writing. Most of the provisions relating to the AFSJ seem to have ‘survived’ the first round of negotiations unchanged,15 but the Convention’s compromise package has already been ‘unbundled’ to a very significant extent in the criminal justice field.16 Mainly at the insistence of the British government, the IGC agreed to insert a specific clause protecting the differences between the legal traditions and systems of the member states and ‘in particular between

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the common law systems and the others’ in relation to any EU measures in the domain of criminal procedure (new Article III-171(2)). In addition, a sort of ‘emergency brake’ procedure has been designed according to which a member state which considers that a European framework law in the domains of criminal procedure or substantive criminal law infringes fundamental principles of its legal system will be able to refer the draft law to the European Council, thereby ‘suspending’ its adoption according to the normal legislative procedure (new Articles III-171(2) and III-172(3)). The European Council would then have the possibility of either referring the draft law back to the Council for termination of the suspension, or requesting the Commission or the group of member states who initiated the law to submit a new draft. This is clearly a most peculiar innovation as it would allow any member state simply to interrupt an ongoing legislative process, and also give the Heads of State and Government in the European Council a de facto legislative role which is clearly not in line with the institutional system of the EU. While it has to be recognized that majority voting in the criminal justice domain poses particular problems, the introduction of such a procedure may well be worse than maintaining unanimity because it undermines the normal legislative interaction between Commission, Council and Parliament. It shows the dangers of a selective ‘opening’ of the Convention draft in response to specific national interests. It is hardly surprising that in response to British concerns, the Italian Presidency has also proposed to make any extension of the European Public Prosecutor’s powers beyond the protection of the financial interests of the EU dependent on unanimity in the Council and national ratification by the member states (new Article III-175(4)). Yet at the Brussels summit in December 2003, the Heads of State and Government failed to reach agreement on the introduction and the powers of a European Public Prosecutor and on the question of majority voting in the criminal justice domain, so that this remains open for renegotiation. The Irish Presidency in the first half of 2004 appeared to want to avoid a general renegotiation of the provisions relating to the AFSJ, although there will clearly be some substantial changes in the criminal justice domain along the lines indicated above. Additional changes would most likely only go back on some of the reform compromises agreed upon in the Convention without remedying any of

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their deficits. As full partners at the negotiating table from 1 May 2004, the new member states have their chance to resist the temptation to make an imperfect but still substantial new ‘constitutional’ framework for the AFSJ worse by additional intergovernmental compromises.

Notes 1 European Commission, Standard Eurobarometer 59, Brussels, July 2003, pp. 9 and 58–9. 2 Formally codified in Article 2 of the Treaty establishing the European Union as being of equal legal status to, for instance, Economic and Monetary Union and the Common Foreign and Security Policy as fundamental Union objectives. 3 Kindly made available to the author by Hans Nilsson, Head of the Judicial Cooperation Unit. 4 CONV 69/02 and 206/02. 5 Final Report: CONV 426/02. 6 CONV 435/02. 7 CONV 850/03. 8 By virtue of Article I-6 the Union is vested with full legal personality, which removes current uncertainties on this issue. 9 Council document no. 9153/03. 10 Council document no. 10019/02. 11 Article 6 of the Eurojust Decision is much more vague in this respect (Official Journal of the European Communities, L 61, 6 March 2002). 12 A continuation of the current general enabling clause of Article 308 TEC. 13 However, already under current treaty provisions (Article 63 TEC) some of these aspects would have come under majority voting by 2004. 14 See Europol, ‘2003 EU Organised Crime Report’, The Hague, 21 October 2003, File number 2530–132, section 6.1. 15 Unfortunately the Italian Presidency has not published a complete record of the outcome of the negotiations until December 2003. 16 The following details are taken from the so-called ‘Naples document’, which reflects compromises agreed upon by the beginning of December 2003 (Council document CIG 60/03 of 9 December 2003, pp. 25–9).

7 EU Institutional Reform and New Member States in the Area of Freedom, Security and Justice Vladimír Bileík

Introduction While much of the accession process placed strict demands upon EU candidate states for compliance with the abundant provisions of the acquis, the context of the Convention on the Future of Europe and later the Intergovernmental Conference (IGC) offered a different setting calling for input of ideas by prospective member states. From February 2002 to July 2003 representatives from the CEECs ‘took a crash course in European integration through their participation in the Convention on the Future of Europe’.1 In contrast to the asymmetric nature of accession talks, the Convention offered future member states the first opportunity to take a full part in EU’s internal deliberations.2 This chapter sets out to examine briefly how the post-communist Central and Eastern European countries (CEECs) acted in their new role of EU subjects. More specifically, the analysis looks at the performance of the CEECs as potential shapers of the area of freedom, security and justice (AFSJ) in the enlarged European Union. The text provides a set of broader observations while drawing on specific examples from various countries. The chapter assesses the position and activities of CEECs in the Convention. It highlights their key pronouncements in the area of justice and home affairs throughout the Convention’s work and examines major themes put forward by 135

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representatives of the candidate countries. Finally, the chapter also considers positions of the CEECs in the IGC with reference to the domain of the AFSJ. While the AFSJ agenda by no means dominated in the Convention, the CEECs made a vocal and distinct contribution to general debates on the future management of borders and the Union’s internal security. Although many of the then current EU member states (EU-15) were interested in technical improvements and deepening cooperation in the existing AFSJ, members-to-be largely reflected individual concerns about the successful extension of the AFSJ to a larger and more heterogeneous Union with new and potentially unstable neighbourhoods.

The role of the CEECs and the context of the Convention Assessment of the role played by the CEECs warrants one general remark. Namely, it is hazardous in any circumstances to lump all CEECs into a single basket and make sweeping generalizations about the new EU member states.3 The experience of recent interactions with the EU has demonstrated that the CEECs do not form a monolithic bloc and there are moments when they find themselves supporting different or even opposing positions. At times it is competition rather than cooperation that best captures relations among the Union’s new member states. During accession talks with EU member states the CEECs did not form a unified front and in final negotiations at the summit in Copenhagen (December 2002) each country tried to secure a larger chunk of available EU funds. In the Convention most CEECs joined smaller EU member states in opposing the creation of a permanent president for the European Council, but Poland did not. Diversity of opinions resurfaced most visibly during the 2003/2004 IGC. Hungary’s initiative to include a clause on the rights of minorities in the constitution upset Slovakia. The Poles and the Slovaks fought to include an explicit reference to God in the constitution’s preamble, while the Estonians or Latvians cared much less about the issue. Even more poignantly, by December 2003 Poland was left alone in its stance not to give up the voting weights established by the Treaty of Nice, and other CEECs were willing to discuss the modalities for a new double majority voting. Future debates on an array of policy issues are only likely to reveal more marked differences among the CEECs.

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The particular context of the Convention deserves two further caveats. First, the Convention was a forum that could not fully and comprehensively reveal the positions and priorities of the CEECs. To start with, members of the Convention were nominated by national governments and parliaments but possessed no clear mandate from their respective institutions. Hence, they acted largely in their personal capacity. Major domestic debates on the EU constitution began only once the Convention had completed its work, and many governments of EU members and members-to-be agreed upon individual positions for the Intergovernmental Conference only a few days before the start of the IGC in October 2003. Moreover, for the CEECs participation in the Convention was of secondary importance to the goal of completing accession talks with EU member states. Most difficult discussions on the terms of EU entry culminated in the course of 2002. Representatives from candidate countries were naturally reluctant to offer firm or critical views in the Convention while their governments negotiated crucial conditions of EU membership.4 Last but not least, delegates from the CEECs entered debates on the future of the Union without any practical experience of EU institutions and policies. As a result contributions concerning designs for the enlarged Union often stuck to broad observations. Paradoxically, although representatives from the candidate countries initially called for the establishment of working groups in the Convention, they were most prolific during plenary sessions. Second, the official status of representatives from the candidate countries deserves a point of clarification. Despite numerous concerns, the CEECs sent their governmental and parliamentary representatives to Brussels as virtually equal partners to counterparts from EU member states. Although the involvement of the candidate countries was restricted in certain ways, in practice they could speak out and contribute to the work of the Convention without visible curbs. Formally, delegates from the CEECs could not prevent any consensus that might emerge among the member states. Yet as there was no voting in the Convention, this provision never really mattered in practice. Another constraint stemmed from the composition of the Convention’s Presidium, originally made up of 12 members from EU member states. However, the Presidium soon enlarged to 13 members by inviting a nominee of the candidate states to all its meetings.5 Finally, the restriction of the Convention’s dealings to official EU

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languages hardly affected delegates from the CEECs as most of them spoke fluent English. In reality the Convention provided the first significant arena where delegates from the enlarged Union debated as equals. Participation of the CEECs was marked by their lack of familiarity with the intricacies of the Union, and the Convention remained in the shadow of enlargement negotiations. Yet, as proceedings went on, members-to-be and member states shared the Presidium’s agenda and echoed similar concerns about the fate of EU institutional reform.6

Members-to-be and justice and home affairs Issues of justice and home affairs ( JHA) attracted considerable attention in the Convention because of both their complexity and their controversy.7 The Presidium declared a clear ambition to enhance the clarity, transparency and simplicity of the AFSJ.8 The plenary session on 6–7 June 2002 was devoted to issues of JHA reform and representatives from the candidate countries proved especially vocal with short speeches on the future of justice and home affairs. In order to look at issues of EU reform in more detail, the Convention set up working groups on particular topics. Originally the Presidium initiated the creation of six working groups concerned largely with technical and legal matters. Later the Convention established five other working groups that looked mostly at policy areas and included working group (WG) X, ‘Freedom, Security and Justice’.9 In contrast to numerous contributions in the plenary session, technical suggestions by members from the candidate countries were more limited and input to WG X, ‘Freedom, Security and Justice’, remained confined to a few contributions.10 The level of involvement of the CEECs revealed a certain lack of specialized experience and expertise. It also indicated a specific set of political priorities in the field of the AFSJ. Borders If there emerged a dominant theme of contributions from the CEECs, it was the future of EU borders. Given the commitment to the Schengen acquis, new member states are sharing a challenge of double exclusion. First, at the very least, several years are going to elapse before they integrate completely with other members of the Schengen system. The date for acceding to Schengen has not been set and remains

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subject to further speculation. Officially, the inclusion of new member states is contingent upon the extension of the Schengen Information System. However, enlargement of the Schengen regime is principally an explosive political issue. Implementation of the acquis in new member states continues to be monitored by the European Commission. In the event of failure on the part of the CEECs, these countries are subject to possible safeguard clauses that could prevent early accession to Schengen.11 Second, although not fully integrated with the EU-15, the CEECs have already ‘hardened’ their eastern borders with non-EU neighbours.12 Since 1 May 2004 altogether nine out of the ten new member states have been responsible for guarding the Union’s external frontier, while at the same time they have maintained regular passport checks on today’s EU internal borders.13 New members have introduced visa regimes with their eastern and south-eastern neighbours. Some countries, particularly the Baltic states, are keen on tightening their eastern borders with Russia. However, as discussed in Chapters 3 and 4, in most cases harder borders have led to more difficulties, especially in people-to-people contacts across the new EU border. To compensate for potential losses from reduced travel and lower intensity of local trade on its eastern border, Poland reacted by introducing free visas for Ukrainian citizens.14 The Polish example was soon followed by Hungary, whose ethnic minority in Ukraine depends on various cross-border networks. Yet it is uncertain whether these CEECs are going to be able to maintain more flexible visa regimes with non-EU neighbours following their entry into Schengen as there are pressures to keep uniform fees for Schengen visas across the EU. Convention delegates principally focused on improving the existing system of border controls. Some representatives from the CEECs emphasized the need for a swift integration of the new member states into the Schengen regime, arguing that ‘Europe will not become more secure unless the Schengen regime also fully encompasses all future member states’.15 Others articulated a strong preference for developing a distinct JHA dimension within the Union’s external action, pointing to the need for a degree of flexibility and accommodating approaches to future neighbours of the Union. The representative of the Romanian government stated that ‘the JHA dimension should be further integrated in the various common strategies, especially those

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regarding the current and future EU neighbours: Ukraine, Belarus, Republic of Moldova, Black Sea and Mediterranean region’.16 Working group X, ‘Freedom, Security and Justice’, took a collective interest in the preparations of candidate countries for entry into Schengen and two experts with experience from the German–Polish border addressed the group.17 Their exposés and working group debates highlighted the sensitivity of the border issue and underscored current limits to further integration. While Poland is attempting to open up its western border and qualify for membership in Schengen, Germany is concerned with the security of its eastern border where about half of illegal migrants crossing from Poland are involved in illicit activities.18 Realistically, therefore, although the topic of European border police received considerable attention, it remains a rather long-term prospect attainable through gradual collaborative schemes between member states. In more immediate terms, the candidate countries accentuated solidarity as the guiding principle for achieving an integrated and functioning Schengen. Referring to the geographic location of new member states situated on the eastern fringes of the enlarged Union, the majority representatives of the CEECs focused on greater burden sharing in EU border management. Several members of the Convention voiced support for the cooperation of EU border guards, organization of common surveillance or the establishment of some financial mechanism helping to distribute the costs of policing EU borders.19 Pressures at future external borders will increase and all member states have the responsibility to protect it. The new treaty should therefore ‘recognize this objective and provide the measures to promote solidarity and a fair burden-sharing – but not only with regard to financing’.20 In this context other countries have welcomed the proposal of the Commission for establishing a European Police College (CEPOL) specialized in border policing training.21 Future burden sharing will also have to account for the size and internal resources of the country. Some future member states are larger – such as Poland – and have a particularly long border with third countries. Other states are much smaller but are equally worried about their effective ability to protect the EU’s extensive border. For instance, Slovenia, with less than 2 million inhabitants, will have 670 km of external frontier. During accession talks candidate countries received a lump sum for the performance of tasks connected to

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the Schengen acquis in the first three years of membership.22 One of the results of the Convention in the draft treaty establishing a constitution for Europe is the notable mention of the principle of solidarity in the construction of certain parts of the AFSJ.23 This provision opens up more possibilities for mutual support in building a larger Schengen. More Europe Apart from the focus on shared responsibilities, representatives from the CEECs endorsed other aspects of solidarity in the draft treaty. Most significantly and with direct bearing on the AFSJ, they supported the introduction of Article I-42 that covers the so-called solidarity clause and states that ‘the Union and its Member States shall act jointly in a spirit of solidarity if a Member State is the victim of terrorist attack or natural or man-made disaster. The Union shall mobilise all the instruments at its disposal, including the military resources made available by the member states.’ The solidarity clause can be invoked in order to prevent the terrorist threat in the territory of the member states; protect democratic institutions and the civilian population from any terrorist attack; assist a member state in its territory at the request of its political authorities in the event of a terrorist attack or assist a member state in its territory at the request of its political authorities in the event of a disaster.24 While many CEECs expressed reservations about deeper cooperation in ‘hard’ security, especially about structured cooperation in defence matters, they readily accepted a binding solidarity clause with potential military implications. As the events of 11 September 2001 provided a catalyst for more intensified cooperation in the area of JHA through the adoption of the European arrest warrant, the threat of terrorist attacks enticed the CEECs to agree on a bold definition of the EU’s close cooperation as defined by Article I-42. Indeed, dangers of terrorism and illicit trade and trafficking inspired numerous contributions from members-to-be calling for a greater EU role. Slovakia’s governmental representative affirmed that ‘the events of September 11, 2001 have clearly demonstrated that maintaining a safe and stable Europe in the years to come calls for developing an integrated and comprehensive strategy on JHA issues’.25 Other members of the Convention presented bold views on a range of policy questions asserting the need for ‘a common asylum

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system with a common procedure, not only minimum rules in the current Treaty, and … a need for the QMV [qualified majority voting] and co-decision’.26 There were voices saying that ‘harmonization of material and procedural provisions of criminal law, based on the principle of mutual recognition … seems to be necessary’.27 Additionally, solidarity also entered the debate on asylum policy when a delegate from the CEECs stressed the importance of the establishment of a common asylum policy based on the balanced allocation of burdens.28 Furthermore, shared responsibilities concern police and judicial training as ‘the European Police Academy and the European Legal Academy are key, standing elements fostering the European police and justice affairs cooperation’.29 In short, many representatives from the CEECs supported the overall thrust of the Convention’s contributions in favour of more integration in constructing the AFSJ. There was also widespread consensus on the importance of parliamentary legitimacy in bringing about the AFSJ and on the significance of inserting the Charter of Fundamental Rights into EU treaties. The Charter was seen as a driving force for the constitution of the EU’s legal area containing explicit freedoms and rights of citizens in relation to institutions of the Union. Several CEECs’ representatives expressed the desire to see the Charter ‘included in the system of Treaties’30 or support for ‘the incorporation of principles laid down in the Charter of Fundamental Rights into the future Constitutional Treaty of the European Union’.31

The CEECs and the fate of the draft constitution Most of the aforementioned pronouncements on the future of the AFSJ took place either during the listening phase of the Convention’s work or in the context of WG X, ‘Freedom, Security and Justice’. While they reveal some engagement with the JHA agenda, they tell us less about the CEECs views on the draft treaty establishing the constitution for Europe. Since the whole text of the new treaty was drafted in just five months (from 6 February to 10 July 2003) and the Presidium published Part III of the draft constitution with provisions covering the AFSJ in very late stages of the Convention, virtually no space was left for a meaningful exchange and incorporation of amendments. Hence the role of the plenary in drafting the final articles was at best restricted and any substantive changes were left to the IGC.

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During the closing debates of the Convention and in the early stages of the Intergovernmental Conference questions of justice and home affairs did not belong to the locus of the CEECs’ key priorities for EU reform. Primary concerns covered issues of the institutional architecture of the EU and distribution of power among the Union’s structures and individual member states. Questions such as the composition of the Commission, the definition of decision-making mechanisms and the presidency of the European Council have dominated domestic debates since the publication of the draft constitution. Power designs rather than specific policy issues were of fundamental importance. The CEECs shared an overall interest in fair participation and full inclusion in EU policy making. Their position on EU reform was marked by recent attempts to catch up with and adapt to EU standards. The new members have sought partnership with rather than subordination to old members in future decision shaping. Between status quo and adaptability It should thus not seem shocking that the beginning of the IGC disclosed a rather defensive posture by a number of CEECs in favour of many existing institutional and policy provisions. The new members insisted on keeping their right to nominate a commissioner, they stuck to the definition of qualified majority voting (QMV) from the Treaty of Nice and they were not keen on further integration in most policy areas, especially foreign, social and tax policy. In addition, several of the CEECs were most prolific in advancing seemingly symbolic priorities. For instance, the foreign ministers of Poland, Lithuania, Slovakia and the Czech Republic signed together with their counterparts in Portugal and Italy a letter requesting a mention of Europe’s Christian roots in the preamble of the constitution.32 Matters of the AFSJ were by no means central to the IGC and no new member state clearly pushed for greater or faster integration in justice and home affairs. At the same time, no government from the CEECs has fundamentally opposed provisions dealing with the AFSJ. There are, however, individual political forces that have raised combative voices against specific proposals. It is worth mentioning the attitude of the Czech Republic’s major opposition Civic Democratic Party (ODS) that has adopted a sceptical position vis-à-vis the draft constitution and the incorporation of the Charter of Fundamental Rights. Also,

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several opposition politicians in Poland and one government coalition party in Slovakia – the Christian Democratic Movement (KDH) – expressed views opposed to the inclusion of the Charter in the future constitutional treaty. Despite Slovakia’s official position in favour of the Charter, once the IGC began, KDH politicians and specifically its deputy chairman and Minister of the Interior Vladimír Palko continued to voice resistance to the Charter of Fundamental Rights.33 While in the course of the Convention countries such as Hungary, the Czech Republic or Latvia expressed some support for further integration in the AFSJ and during the IGC many governments kept a relatively low profile in JHA agenda,34 Slovakia is an illustrative example of a more defensive posture. The Slovak Ministry of Justice managed to get a strict clause in the country’s official position for the IGC. Accordingly, Slovakia was ‘against the weakening of the principle of unanimity in the areas of criminal law, justice and police cooperation, asylum, migration’.35 More specifically, the Slovak government agreed to support an amendment to the proposed Article III-170 so that ‘harmonization in the area of civil law could be possible only in cases inevitable for the functioning of the internal market’. In addition, Slovakia backed unanimity in decision making on minimal standards in criminal law (Article III-171) and was against the inclusion of Article III-175 enabling the establishment of the institution of European Public Prosecutor. Ironically, this stance appears in stark contrast to the government’s position from the late 1990s when it called for a quick harmonization of the EU’s asylum and migration policies as an argument in favour of stemming the flow of Slovak Roma to various EU countries. Today, when Slovakia is a member state of the EU and is simultaneously undergoing internal judicial reforms and discussing a new criminal code, it is much less willing to consider such sweeping solutions. And Slovakia is not alone here. Other CEECs in the Convention conveyed doubts about certain aspects of the JHA agenda, asking: ‘European Public Prosecutor – is it not a little early for such a body?’36 Clearly, the varying contexts of interactions with EU institutions and member states result potentially in very different outcomes. Current and future rather than pre-accession attitudes of new member states represent a better guide to their policy preferences. If the IGC serves as the first real test of CEECs’ attitudes as EU subjects, then the results appear mixed. While the positions of some

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CEECs at the IGC are reminiscent of the UK’s ‘red lines’, the new member states are not likely to play the role of a brake on the development of the AFSJ. Unlike the UK, they are fully committed to all existing provisions of the acquis. They have already shown a strong degree of flexibility in adapting to Schengen provisions and other aspects of justice and home affairs. In addition, the thinking of countries is not fixed and an opening rigid standpoint may soften. Slovak Prime Minister Mikulás Dzurinda is a telling case in point by raising a suggestion that in the light of the terrorist attacks in Madrid Slovakia may consider further communitarization in the area of internal security.37 In broader institutional terms, while some new member states adopted a tough stance on the definition of qualified majority voting when they stuck to the contents of the Treaty of Nice, in subsequent negotiations during the IGC they proved more accommodating partners. Once it became clear that nothing short of a compromise could lead to a successful outcome at the close of the Italian Presidency in December 2003, Slovak Foreign Minister Eduard Kukan expressed his doubts about Poland’s rigid position on QMV: ‘The Poles are taking a big risk. They staked everything on one roll of the dice, and presented their point of view in a way which gives Poland no chance of retreat.’ Similar sentiments were echoed by Czech Foreign Minister Cyril Svoboda, who said, ‘Poland has made a tactic mistake.’38 At the summit in Brussels in December 2004 Prime Minister Dzurinda indicated the government’s openness to different scenarios when he said, ‘Nice is fine but let’s not paint a black picture of double majority’; ‘Schuessel [Austrian PM] says 60 and 60 [formula for a double majority] – and I have no problem.’39 Unlike Poland (and countries such as France and Spain), other new member states were willing to alter their stance on QMV. As one diplomat put it, some countries adopted a stance of ‘least resistance’.40 Most governments of new member states were more interested in attaining an agreement on the draft constitution than in sticking to Nice. The Polish position represented an exceptional case. Although it demonstrated that the CEECs might be resistant to changes in sensitive institutional and policy areas, the majority of new member states are keen on securing agreements and willing to compromise. Their readiness to strike a deal on the draft constitution is at the very least indicative of a broad agreement with the direction of

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the Convention’s proposal in the AFSJ. However, pushing for more integration shortly after accession would be going one step too far for the CEECs. In fact, certain areas of the JHA agenda might not be negotiable in the foreseeable future. Yet in the case of countries that have been undertaking intensive domestic reforms, their current opposition to greater integration in the area of criminal law, or reluctance to endorse the establishment of the European Public Prosecutor, should not be considered particularly surprising. At the same time, the very same countries are bound to be at the forefront of EU efforts to establish effective border management and controls. The EU is still in a process of enlarging to the east and south-east, and the borders concerned are largely borders of new member states. For that reason alone, Central and Eastern European countries are likely to remain more vocal on matters concerning borders than on deepening cooperation in areas of civil and criminal law.

Notes 1 H. Grabbe, The Constellations of Europe. How enlargement will transform the EU (London: CER, 2004), p. 53. 2 The Convention included representatives of governments and parliaments from thirteen candidate countries covering ten states that entered the EU on 1 May 2004 plus Romania, Bulgaria and Turkey. 3 Malta and Cyprus differ fundamentally due to both their particular histories and geographic location as islands in the Mediterranean. There are also many vital differences among the eight new post-communist member states. 4 Some representatives – such as Ján Figel’ of Slovakia or Danuta Hübner of Poland – were simultaneously involved in accession talks with the EU. 5 Representatives of candidate countries chose Alojz Peterle from Slovenia as the invitee to the Presidium. 6 Shared concerns included the centralistic style of Valéry Giscard d’Estaing, President of the Convention, or questions about the impact of the intraEuropean divisions in the run-up to war in Iraq in the spring of 2003. 7 For a succinct summary of the main issues see F. Hagedorn, ‘Reforming Justice and Home Affairs. A Question of Balance: The Area of Freedom, Security and Justice’, Convention Spotlight 2002/09 (Munich: Center for Applied Policy Research, 2002). 8 See CONV 69/02 for progress report on the state of JHA and ambitions for the Convention. 9 The original six working groups covered the topics of subsidiarity, the Charter of Fundamental Rights, legal personality, national parliaments, complementary competences and economic governance. An additional

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10

11

12

13 14

15 16 17

18 19 20 21 22 23 24 25 26 27 28 29 30 31 32

five working groups dealt with questions of external action, defence, simplification of instruments and procedures, justice and home affairs and social Europe. The complete list of contributions to the proceedings of working group X is available on the Convention’s website: http://european-convention. eu.int/bienvenue.asp?lang=EN&Content=. The possibility of introducing safeguard clauses in the area of the single market, Common Agricultural Policy and Schengen is explicitly mentioned in the Accession Treaty. For the analysis of the external dimension of enlarging Schengen, see J. Batt, ‘The Enlarged EU’s external borders – the regional dimension’, in Partners and neighbours: a CFSP for a wider Europe, Chaillot Paper no. 64 (Paris: EU Institute for Security Studies, September 2003), pp. 102–18. The only exception is the Czech Republic, whose eastern neighbour is Slovakia. Ukrainians have to apply for visas but do not pay a visa fee. Conversely, Ukraine introduced visa-free travel for Polish citizens. Hence the Poles only need their passports to enter Ukraine. Speech by Ján Figel’, plenary session 6 June 2002. Hildegard Puwak, Representative of the Romanian Government, Working Group (WG) X – Working Document (WD) 24. See CONV 386/02 for summary of WG X meeting held on 29 and 30 October 2002. The two experts were Colonel Marek Adamczyk, Director in the Polish Border Guard Unit and Mr Eckehart Wache, Head of the Federal Border Police Office in Frankfurt/Oder. CONV 386/02. Speeches by Danuta Hübner and Nelly Kutzkova, plenary session 6 June 2002. Prof. Dr Mihael Brejc, Vice-President of the National Assembly of Slovenia, Alternate Member of the European Convention. WG X – WD 31. WG X – WD 24. For example, Slovakia received 47.8 million euros for the aforementioned period. See Chapter 6, this volume, for an analysis of solidarity and the AFSJ. See Article I-42 of the draft treaty establishing a constitution for Europe. WG X – WD 24. WG X – WD 31. Pal Vastagh, Hungarian parliamentary member of the Convention, WG X – WD 28. Ibid. Ibid. Jan Kavan, Representative of the Czech government in the Convention, CONV 115/02. WG X – WD 28. The letter was sent to the Irish presidency of the EU on 22 May 2004.

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33 See for instance Vladimír Palko’s article in the Slovak daily, Sme, 11 December 2003. 34 For positions of various members-to-be on unanimity in select policy areas including JHA see C. Franck and D. Pyszna-Nigge (eds), Position of 10 Central and Eastern European Countries on EU Institutional Reforms: Analytical Survey in the framework of the CEEC-DEBATE project (Louvain-la-Neuve/Brussels: Université catholique de Louvain, June 2003). 35 Author’s translation of the official position adopted by the Slovak Government on 2 October 2003. The text of the position can be found at http://www.foreign.gov.sk/files/stanoviska_sr_mvk_rome.doc. 36 WG X – WD 31. 37 See http://www.government.gov.sk/aktuality_start.php3?id_ele=4405 for the record of Prime Minister Mikulás Dzurinda’s press conference after the Brussels European Council, 26 March 2004. See also http://www. government.gov.sk/aktuality_start.php3?id_ele=4404 for the record of PM Dzurinda’s press conference at the end of the first day of the Brussels European Council on 25 March 2004. For reactions of ministers from the Christian Democratic Movement (KDH) see the Slovak daily, Sme, 26 March 2003. 38 Foreign Minister Eduard Kukan quoted by Press Agency of the Slovak Republic (TASR), 10 December 2003. Also see www.poland.pl/articles/ print.htm?id=73642. 39 Press conference of the Prime Minister Mikulás Dzurinda, Brussels, 12 December 2003. 40 An informal conversation with a Slovak diplomat in Bratislava, 28 April 2004.

8 Conclusion: The Politics of Freedom, Security and Justice in the Enlarging EU Heather Grabbe

Introduction The chapters in this book highlight the dilemmas faced by the enlarging EU in trying to achieve greater freedom, security and justice for nearly half a billion citizens. The case studies presented in this volume show how difficult the new members of the Union have found it to deal with the EU’s burgeoning agenda in justice and home affairs (JHA), but also how this challenge has intersected with their growing domestic problems with crime, immigration pressures and internal security threats. Sometimes the EU’s agenda for JHA cooperation has helped them to tackle these problems, but often it has complicated policy making. And the introduction of a huge new agenda in the last four years or so of the accession negotiations – as a result of the EU’s parallel development of the ‘area of freedom, security and justice’ (AFSJ) – certainly made membership more demanding to achieve. The political climate in Europe changed significantly during the 15 years when the new members were preparing to join the EU, and when the Union was developing its new internal security agenda. In addition to dealing with a new situation to its east and south, the EU and its member states experienced shocks which changed perceptions of internal security threats. This chapter considers two major changes to the politics of internal security in Europe during the period 149

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when the EU was preparing for eastward enlargement: the role of border controls following the end of the cold war; and the impact of 11 September 2001 on European approaches to internal security. It then looks forward to the changes that are likely over the years ahead, following the 2004 enlargement.

The changing nature of borders and the privatization of fear What are borders for? The answer to this question changed following the end of the cold war. Many of the ‘new risks’ facing Europe after 1989 still relate to borders, but their role in security has changed. No longer used primarily to deter military attack and to keep unwilling populations within communist regimes, borders have become multifunctional. They are seen as something to be overcome (through cross-border cooperation, for example), but also as a discriminatory division between peoples (in visa policy). Their functions have changed in the last decade. When they were the frontiers of cold war Europe, the iron curtain held people in as much as kept them out. By the end of the 1990s, this situation had been reversed. Borders have been opened from the eastern side after 1989, but they are now being tightened from the west. Movement across the Schengen zone is loosening frontier controls in the west, but at the same time, borders between Central and East European countries and their neighbours are controlled increasingly tightly, owing to pressure from the EU. Yet both of these border regimes have been wrought in the name of European integration. Frontier controls have come to be seen as the EU’s first line of defence against instability and its consequences – refugees, crime, and the breakdown of law and order. But frontiers are also something to be positively overridden; they are a legacy of the post-1945 divisions that the European integration project was designed to overcome. After all, the Treaty of Rome resolved ‘to eliminate the barriers which divide Europe’ and aspired to ‘an ever closer union among the peoples of Europe’, an aim that has been extended to include East European peoples following the collapse of communism in 1989.1 The implications of extending Schengen borders to Central and Eastern Europe are significant for the future of European integration and also for the security of the wider Europe surrounding the EU

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core. After all, ‘Europe’ is largely defined – both geographically and politically – by its border policies. We have often heard aspirations to create a Europe ‘whole and free’, and EU enlargement has greatly helped to achieve this goal. But the interim phase of integrating only part of post-communist Europe into the Schengen zone has created new dividing lines in this wholeness. The opening of east–west borders coincided with a burgeoning internal security agenda within the EU. A policy area that could be called ‘micro-security’ was growing fast in the 1990s as EU policy makers responded to myriad threats to the security of their citizens by developing new instruments at both national and EU levels. At the same time, many of these threats were perceived to be emerging from behind the former iron curtain. Central and Eastern Europe (CEE) is seen in the ‘EU-15’ of pre-2004 member states as containing not just countries that should be protected by the embrace of international security organizations, but also countries that are themselves a source of potential danger to EU security at the micro-level. Unlike the ‘macro-security’ concerns of the cold war, which primarily involved state-controlled and politically driven threats from national militaries, the new risks are from private individuals. Governments which have oriented their foreign policies towards joining EuroAtlantic structures are by definition no longer a macro-security threat following the end of the cold war. But they cannot necessarily stop people on their territory from engaging in activities which the EU finds threatening, such as organized crime or illegal migration. This privatization of security threats presents governments with a complex dilemma because autonomous citizens are much more difficult to deal with than state-governed forces in the international security framework. These are threats that democratic CEE governments cannot counter by using the means of their repressive predecessors. Communist-era internal security regimes have been (largely) dismantled, and one of the new-found freedoms of the populations is less surveillance by the state.

Border dilemmas for Central and Eastern Europe The politics of borders also rose in salience in the CEE countries. The most sensitive and difficult aspects of implementing the EU’s evolving agenda for JHA in CEE have been to do with Schengen and the

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movement of persons. The spread of organized crime and trafficking grew increasingly salient during the 1990s (as Miroslav Nozina’s chapter (Chapter 2) in this volume demonstrates), and crime and immigration threats became increasingly securitized (as discussed in Karen Henderson’s chapter (Chapter 1)). Terrorism rose up the political agenda after 11 September 2001, as in all of Europe, as discussed below. But political debate about the EU’s activities in justice and home affairs matters has been dominated by the question of movement of people over EU and non-EU borders. In the CEE countries, very widespread and intense discussions about EU border policies have grown from 1997 onwards. Two topics have dominated public and political debates: the first is perceptions of discrimination against CEE citizens, particularly because the EU imposed a transition period on their right to work in most of the EU-15 labour markets for at least two years after accession. The second issue is the impact of tighter regulation of movement of people – particularly through visa regimes and border controls – on relations with neighbouring countries. Internal security is a highly sensitive issue in domestic politics in most countries. But in Central and Eastern Europe, there are also understandable concerns about the impact of erecting Schengen borders on delicately balanced relationships with difficult neighbours – as far apart as Ukraine, Kaliningrad (part of Russia) and Serbia. CEE political leaders repeatedly expressed their concern that measures such as introducing entry visas should not introduce new barriers between their populations, but the priority given to EU demands has caused acute dilemmas for CEE policy makers. Behind the widely used rhetoric about ‘not putting up a new iron curtain’ lies a complex set of compromises whereby each country has tried to navigate between EU pressures and other policy concerns, both domestic and external. Ultimately, all the candidate countries had to comply with the EU’s demands, and each found its own ways of accommodating them, as the chapters in this volume demonstrate. In their contribution, Iwona Piórko and Monika Sie Dhian Ho (Chapter 3) show what a difficult balancing act that was by looking at the costs and benefits of the EU agenda in the case of Poland. EU-inspired changes to the status and porosity of the CEE countries’ non-EU borders revived various bilateral issues over the borders lying between the candidates (for example, the Czech Republic and

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Slovakia; Hungary and Romania), between candidates and member states (Germany and the Czech Republic; Austria and Slovenia), and between candidates and non-candidates (Poland and Ukraine; Romania and Moldova). However, joint approaches to dealing with the regional dilemmas posed by accession were very limited. The question of visa regimes was frequently discussed in CEE parliamentary debates and the media, but multilateral cooperation between the candidates was largely informal. The Czech Republic, Hungary, Poland and Slovakia discussed it under Visegrad Cooperation, but most negotiation on the issue was necessarily conducted bilaterally between each country and the EU, owing to the structure of the accession negotiations. The policies that the EU-15 transferred to the then candidate countries on borders, migration, asylum and visas are most controversial because they affect political relations with neighbouring states and also economic integration. Other aspects of JHA such as fighting crime and improving law enforcement required considerable investment on the CEE side, but they did not have the same scope for disrupting foreign relations. Visa policies have had a particularly negative reputation in the region. Restrictions on the right to travel are reminiscent of the cold war restrictions on personal liberty, and they are generally unpopular. But the candidates differed in how far they tried to resist the EU’s demands for early imposition of visa restrictions on neighbouring non-EU countries. Hungary and Poland imposed such restrictions on their immediate non-EU neighbours only shortly before accession. However, other candidates implemented visa requirements for Russia and Ukraine much earlier. The Czech Republic and Slovakia required visas from Russians and Ukrainians from Autumn 2000, for example, even though Slovakia shares a border with Ukraine. Both countries immediately had to upgrade their consulates and massively increase the number of staff dealing with visa applications. The candidates largely accepted the EU’s agenda for border control because it was a potential veto-point for accession. The politics of internal security were so sensitive in the EU’s existing member states that the Commission took a very hard line in negotiations. The candidates also knew that their accession might be vetoed by one or another member state if they did not comply fully with the EU’s demands in the areas of Schengen and JHA.2 But the costs were high

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for their external relations. The application of EU visa policies inevitably inhibits economic integration and bilateral cooperation between countries that are ‘ins’ and ‘outs’ in the EU accession process. Because it led to the export of EU border policies, Schengen casts a shadow well beyond the EU-25 countries who were members in 2004, affecting their neighbours as well (as Sandra Lavenex discusses in her chapter (Chapter 5) in this volume).

The impact of 11 September 2001 and its aftermath on Europe In the past seven years, justice and home affairs has become the most hyperactive area of EU policy making, accounting for a significant and growing proportion of new EU legislation. It was already developing in parallel with the enlargement process during the 1990s. The attacks in New York and Washington DC on 11 September 2001 then gave a major impetus to internal security cooperation in the EU. But the momentum did not last long owing to national sensitivities about implementing all the agreed measures in the member states. Parts of the anti-terrorist framework agreed by the EU after ‘9/11’ are still not fully in place three years on. In the three months following the attacks in the USA, EU ministers approved a raft of common measures against terrorism that would otherwise have taken months or years to pass. Political opposition to the harmonization of rules on internal security ebbed in autumn 2001 because no politician wanted to be seen as slow in responding to the terrorist threat. Some politicians opportunistically used the new battle against terrorism to reintroduce old proposals – German Interior Minister Otto Schily’s idea for a European riot police, for example, or German and Italian proposals for a common EU customs service and border guard. But others only reluctantly agreed to share information with partners in other countries whom they do not wholly trust. The terrorist attacks in September 2001 made it obvious that individual countries can do little on their own to guard against crossborder threats. Before then, justice and interior ministers were already trying to implement the agenda for the ‘area of freedom, security and justice’ set by the Tampere European Council in 1999. But the attacks in New York and Washington provided a strong political reason for

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moving ahead with proposals that had been shelved in the face of political opposition and practical obstacles. Most of the measures taken in autumn 2001 were already in the pipeline. Arguably, only one of the measures was a direct response to 11 September and had not already been in preparation – the reinforcement of airport security. Within two weeks of the attacks in the USA, the European Council decided to agree on a common definition of terrorism, an EU-wide search and arrest warrant, and a common list of suspected terrorist organizations. The European Council also pushed for long-delayed cooperation on the exchange of information between national intelligence services. Europol – the EU’s fledgling joint police agency – gained a special anti-terrorism unit to cooperate with US counterparts. The European Council also proposed specific measures to deal with terrorist threats: the strengthening of air travel security, an extension of the Commission directive on money laundering, and a framework decision on freezing the assets of suspected terrorists. The most significant of these moves were the common definition of acts of terrorism and the European search and arrest warrant. Most member states did not have a specific offence of ‘terrorism’ beforehand, so they could not prosecute people for incitement to violence, raising funds for terrorists, or being a member of a terrorist group. In many EU countries, terrorists could only be caught and prosecuted after they had committed murder or damaged property. In addition, member states began establishing a common list of penalties for particular offences, with prison sentences specified for particular terrorist acts in all member states. The common arrest warrant was a giant leap for the EU, for it requires the member states to trust each others’ judicial systems. Once the arrest warrant has been ratified and implemented by all the member states, extradition procedures between EU countries are to be abolished, and replaced with a system whereby judicial authorities surrender suspects to other member states on the basis of a single warrant. That will speed up the arrest and prosecution of suspected criminals and terrorists. The arrest warrant will also accelerate the integration of criminal justice in the EU because it gives substance to the principle of mutual recognition between judiciaries. The European search and arrest warrant and the common definition of terrorism take European integration close to the heart of national sovereignty. Several of the measures taken since 11 September lead

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into uncharted territory, with the EU taking its first steps towards the harmonization of national legal systems. However, after the initial burst of activity in autumn 2001, implementing all the new plans has taken a long time, which meant that the new CEE members of the EU have had time to catch up. The agenda rapidly moved into very complex and difficult issues that require detailed work at national level. The success of the counterterrorism measures ultimately depends on their implementation. That cannot be decided by ministerial meetings alone. It relies on a sustained effort to reconcile legal procedures, and painstaking work to ensure that the new powers are used wisely by national and European authorities. When the European arrest warrant is fully in place, national penal systems will have to be made more similar. However, it is not clear how far that harmonization will have to go. The idea behind the principle of mutual recognition is that only a minimum of key areas are harmonized, while the rule is that countries respect decisions made by foreign courts as their own. That means police and judges must have confidence in one another’s legal systems – and confidence has long been in short supply, especially between Northern and Southern Europe. The member states have varying traditions on civil liberties, and different social attitudes towards the powers of the state and respect for the law. Their national and regional police forces have different working methods. The accountability of law enforcement agents varies across countries too. Their judicial systems exhibit widely varying legislation and practices, as well as constitutional bases. And there are fundamentally different legal cultures, with some systems based on Roman Law and others on Common Law. Threat perceptions remain different too. Some countries have long experience in dealing with terrorist attacks on their own soil: Spain with separatist Basques, the UK with Northern Ireland, and France with Algerian militants. But others still feel little immediate threat, and their publics are less keen on giving the state more powers over individual citizens. In this respect, there is no clear divide between the old and new member states. The new members all sent troops to Iraq, and there were concerns about their vulnerability to terrorist revenge attacks by Al Qaeda and related groups. But none of the Central and Eastern European countries has experienced terrorist campaigns recently – unlike France, Germany, Greece, Italy, Spain or the UK – so

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feelings of vulnerability among the public are more comparable to those in Finland or the Netherlands. The EU’s hyperactivity in strengthening internal security after 11 September created even greater pressure on the candidates who will form the new external border of the Union. The associated security push caused EU negotiators to tighten the technical conditions for accession for the CEE countries while they were still candidates. New priorities were added to the list of tasks that candidates have to undertake for internal security, and meeting them was a major challenge for the candidates’ already stretched police and judicial systems. The candidates were regarded as the first line of defence against the entry of illicit goods and people into the EU from the east and south-east. The CEE countries were an easy target because the EU could force the candidates to undertake internal security measures that its then 15 member states would not accept. Pressure on the applicants was relatively cost-free: the EU could be seen to be doing something, but without restricting the civil liberties of citizens in the EU-15. But now that they have joined the EU, the CEE members will have a voice and a veto in such matters. It is not yet clear how each will approach JHA issues – although the chapters in this volume offer some valuable pointers.

Will the EU continue to liberalize the movement of people? One of the EU’s greatest achievements is the creation of a zone of free movement for people to travel from the Arctic to the Mediterranean, and from the Danube to the Atlantic. But although Europeans are benefiting from this success of integration, they are also increasingly worried by threats to their security. Immigration is increasingly unpopular in many countries, even ones like Denmark and the Netherlands which until recently had liberal policies. Terrorism features more and more in opinion polls on people’s fears, even in countries which have not experienced terrorist attack. As governments across the European continent seek to tackle internal security threats, the Schengen zone could become harder to traverse rather than easier. It is possible that the politics of fear will lead to the re-introduction of document checks within countries, and

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particularly on borders. And it is very likely that EU governments will employ new methods to track the movements of people across their territories. EU countries made most progress in liberalizing the movement of people during the years immediately following the end of the cold war, and before the attacks in the USA in 2001 and in Spain in 2004. Those dozen years may come to be seen as the heyday of freedom for travellers in the EU, before the pendulum swung back towards security. Changes in the political atmosphere across the EU will have a direct impact on the new member states of the Union, because they are still outside the Schengen zone, waiting for entry. The CEE members’ borders with the old EU-15 countries will still be subject to passport checks for years to come. The old member states are unwilling to admit the new members to the Schengen zone of passport-free travel any time soon – and it is the Schengen members which decide, not the Commission. Even though the new members have already shouldered most of the costs – both financial and political – of joining the Schengen system, the old members are increasingly worried about making it watertight. Officials in the original five Schengen countries (Belgium, France, Germany, Luxembourg and the Netherlands) frequently complain that Schengen has a ‘soft underbelly’ along its Mediterranean borders, and they sometimes express regret that Italy and Greece were admitted to the zone at all. Officials and politicians in the current Schengen countries are thus concerned to ensure that the Schengen border to the east is less porous than the one to the south – especially as it is a land border rather than a sea border. They will be reluctant to let any country into the system which has an external EU frontier unless it can demonstrate a very high level of compliance with the Schengen border regime. The Schengen members want to see extremely tight controls on the movement of persons and goods over the EU’s external frontiers into the new members before removing passport checks within the enlarged Union. Customs controls on the movement of goods within the enlarged EU have been largely removed since 1 May 2004, but those on people have not. The terrorist attacks in Madrid in March 2004 have made member states even less willing to relax border checks anywhere in Europe. Even absenting the politics, the new members cannot become full members of Schengen for a minimum of two years after accession for

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technical reasons. It will take the EU until at least 2006 to upgrade and extend its database for recording travellers, called the Schengen Information System (SIS). By then, the criteria for joining Schengen may have become even more onerous. Yet again, the CEE countries will be running to catch up with the moving target of EU policy making. But although Schengen has caused the new members problems, they will be in favour of the EU taking on a stronger role in justice and home affairs more generally. Most Central and East European countries have experienced a dramatic rise in applications from asylum-seekers, so they will probably support more coordination of migration and asylum policies in the EU. In 2003, asylum claims in Slovenia more than doubled, while those in Poland increased by a third, according to the UN High Commissioner for Refugees.3 Because of these growing challenges, the new members will probably try to join any new asylum and migration initiatives that the EU develops, even if some of the old members decide to stay outside.

The future politics of internal security So far, the public has been keen on tighter European cooperation on security and crime. But will interference in individual liberties make the EU more unpopular in the longer term? Much depends on how effectively the member states cooperate under new systems that the EU develops, and whether fledgling institutions like Europol and Eurojust become effective agencies. They need to be able to deliver results that are evident to the public, as well as to maintain a balance between the goals of security, justice and freedom. The key is implementation, to ensure that the new powers are used wisely by intelligent and capable personnel. More surveillance will be useless if the information is not acted upon, and intelligence gathering is no good if the data are not interpreted properly. Poorly trained border guards and airport security personnel are worse than useless: they arouse the hostility of the travelling public without actually catching the criminals. Badly paid border guards and baggage-handlers also pose a security risk, because they are susceptible to bribery and corruption, and are tempted to collude with organized criminals. Effectiveness also has to be balanced with accountability. Oversight of the growing European judicial system is sorely lacking, according

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to human rights groups like Justice. At present, all supervision is intergovernmental, so EU-level activities that affect individual freedoms are largely unmonitored and unsupervised. Europol’s activities are monitored only by national governments, with no independent oversight. If it stays with a primarily intergovernmental system, the EU needs an ombudsman to whom individual citizens can appeal for protection. Here, the changes made in the EU’s draft constitution to the legal and institutional system so far may be insufficient (as Jörg Monar discusses in his chapter (Chapter 6) in this volume). Further changes to the EU’s treaties are likely to be needed in the years ahead to tighten up oversight and make JHA policy making more accountable. The new members could play an important role in these debates (see Vladimír Bileík’s chapter (Chapter 7) on their role in the Convention). Civil rights campaigners are already raising concerns about how the EU protects the data it holds on individuals in the SIS database. It contains information on a huge range of people, but the accuracy of individual records is not checked, and its content varies depending on the national police force that has entered the record. Individuals can gain access to their files only through national data protection laws, which differ enormously across the EU’s member states. And it is difficult for an individual citizen to seek to amend incorrect information on his or her record. The problem of lack of oversight and access will become even more acute if Europol gains a new mandate to coordinate work between national secret services and police. If secret service officers are working within Europol, they are likely to share information with their police colleagues, even if that information has been obtained through illegal means. The problem is that the new measures do not just affect suspected terrorists, but all citizens. The EU’s ‘area of freedom, security and justice’ can only acquire public trust and legitimacy if it can ensure that the rights of individual EU citizens and residents are not eroded by all the new powers given to national and international authorities. In addition to new programmes for catching criminals, citizens need new measures to ensure their protection. The pressure group Fair Trials Abroad has proposed a system of ‘Eurobail’ for allowing provisional liberty to suspects arrested under the EU warrant, and the introduction of civil rights at EU level (‘Eurorights’) to protect citizens across the EU, not just in their home countries. Such initiatives

Conclusion 161

are sorely needed to balance the new powers being given to Europol and Eurojust. Otherwise complaints about interference from Brussels will move to a new level, from straight bananas and ‘metric martyrs’ to fears of a continent-wide Orwellian Big Brother watching citizens’ every movement. Such fears are especially potent in the new member states, where memories of unwelcome state surveillance of citizens are still raw. EU measures on internal security touch very sensitive areas, both in the EU’s relationship with its member states, and also the states’ powers over citizens. In future, EU-level policies will increasingly affect the freedoms of individuals. This creates political dilemmas for every party. On the left of the political spectrum, civil liberties campaigners are already uneasy about encroachments on personal freedoms. On the right, eurosceptics are raising questions about the transfer of new powers to the EU in justice and home affairs. But public safety concerns will drive cooperation and integration in different forms none the less, as internal security increasingly advances vis-à-vis external security as a preoccupation of voters. These days people fear illicit migration, cross-border crime and international terrorist networks far more than Russian tanks and missiles. These debates are becoming as lively in Central and Eastern Europe as they are in the old EU-15. The politics of internal security will continue to resonate across Europe, and the differences between the old and new members will diminish over time as they tackle common problems together. Two lines were starkly clear during the cold war: one between Eastern and Western Europe, and another between internal and external security. In the past 15 years, both have been rubbed away for good.

Notes 1 Preamble to ‘Treaty Establishing the European Economic Community’, Rome, 25 March 1957. 2 See H. Grabbe, ‘Regulating the Flow of People across Europe’, in F. Schimmelfennig and U. Sedelmeier (eds), The Europeanization of Central and Eastern Europe (Ithaca: Cornell University Press, forthcoming 2005). 3 United Nations High Commissioner for Refugees, Asylum Levels and Trends: Europe and non-European Industrialized Countries, 2003 (Geneva: UNHCR, 24 February 2004).

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Ministry of the Interior of the Czech Republic, Zpráva o situaci v oblasti migrace na území Eeské republiky za rok 2002, Prague, 2003. Ministry of the Interior of the Czech Republic, Zpráva o situaci v oblasti verejného porádku a vnitrní bezpeenosti na území Eeské republiky v roce 1999, http://www.mvcr.cz/dokumenty/bezp_si99/priloha1.html. National Labour Office of the Slovak Republic, Skrytá nezamestnanost’ a boj s nelegálnou prácou, Bratislava, April 2003. Odbor hranienej a cudzineckej polície Prezídia Policajného zboru, Vyhodnotenie roka 1998, Bratislava, 1999. Office of the Government of the Slovak Republic, Nezamestnanost’ na Slovensku, Bratislava, 2002. Ondera, P., ‘Skryté riziká ilegálnej migrácie’, Informaeny bulletin, No. 48, Bratislava, Slovenská informaena agentura, 1997. Schelter, K., Challenges for non- (and Not-Yet-) Schengen Countries, vol. 13, 15 March 2003. Geneva: paper presented at the Workshop on Managing International and Inter-Agency Co-operation at the Border, Geneva Centre for the Democratic Control of the Armed Forces. Síeáková, E. Faces of Corruption in Slovakia I (Bratislava: Transparency International Slovakia, 1999). Sˇtatisticky úrad Slovenskej republiky, Názory verejnosti na prácu policajného zboru z aspektu prevence kriminality a krádezí vlámaním do bytov, Sˇtatistické analyzy a informácie e. 471/1996. Ukrajina ta Slovaccyna naperedodni vvedenna vizovoho rezymu. Dvostoronni vidnosyny ta prykordonne spivrobitnyctvo, Materijaly miznarodnoji naukovoji konferenciji, Uzhorod, 31 travna–1 cervna 2000 roku, Nacionalnyj Instytut Stratehicnych Doslidzen, Friedrich Ebert Stiftung, Slovenská spoloenost’ pre zahranienú politiku, Ukrajinskyj Centr Doslidzen Problem Miznarodnoji Bezpeky (Uzhorod: Vydavnyctvo V. Padaka, 2000). United Nations High Commissioner for Refugees, Asylum Levels and Trends: Europe and non-European Industrialized Countries, 2003 (Geneva: UNHCR, 24 February 2004). Úrad hranienej a cudzineckej polície policajného zboru Bratislava, Legálna a nelegálna migrácia v Slovenskej republiky za rok 2002, Bratislava, 2003.

Index accession requirements, and acceptance of JHA acquis 50; achievements 16–19; and adjustment of domestic legislation 68; challenges 19–20; Chapter 24 7–9, 68–9; and closure of justice/home affairs chapter 16; coercive power of EU 7; existing/ candidate country difference 8; implementation of obligations 14–16; and internal problems 8–9; new members as full members 158–9; and Schengen acquis 9, 11–12; sensitive issues 9; visas 17–18 Action Plans 97–8, 100, 104 area of freedom, security and justice (AFSJ) 8, 95, 149; as central treaty objective 49; development of 20; extending 48–61; importance of 110–12; insider/outsider status 18–19; and joining eurozone 19; and lifting of border controls 19; as major area of ‘growth’ 11; and modern nation-state 110–11; possible effect of new draft constitution on 112–32; preparation for 1; prospects after failure of IGC (2003) 132–4; and public trust/legitimacy 160–1; questions/challenges 112; sensitive political issues 11; transition periods 19–20 asylum seekers 13–14, 18, 113, 116 Balkans 25 Baltic states 4, 91, 92, 95, 98 Belarus 101

border controls 9–11, 17–18, 19–20; abolition of internal 49; and border police 140; and CEECs 138–41; changing nature of 150–1; Chibinau view of 93; dilemmas for CEE 151–4; and draft constitution 116–18; future burden sharing 140–1; hard/soft borders 90–1, 139; importance of external 51; improving 139–40; Kyiv/Minsk view of 92; and liberalizing movement of people 157–9; Moscow view of 91–2; and new eastern neighbours 96–102; Polish 50, 51, 54–5, 56, 57, 60, 61; and privatization/ security threats 150–1; programme initiatives 99–102; Slovak-Ukraine 66–86; threats from third countries 86, see also internal security Brussels (2003) 133 Bureau for Fighting Organized Crime (Poland) 32 Bureau for State Protection (Poland) 34 Buzan, O. 4 Central Affairs Council (EU) 103 Central and Eastern European countries (CEEC) 1–2, 89, 95, 102–3, 150; between status quo/adaptability 143–6; border dilemmas 138–41, 151–4; and decision making on EU policy 3; domestic transformation 2–3; and EU accession 3; and fate of draft constitution 142–6; members-to-be/justice and home affairs 138; position of in

170

Index 171

Central and Eastern European countries – continued IGC 136; and qualified majority voting (QMV) 143, 145; role of CEECs/context of Convention 321–8; as shapers of AFSJ 135; and solidarity clause 141–2 Centre for International Cooperation between Police Forces 42 Charter of Fundamental Rights 114–16, 130, 132, 142, 143–4 Clean Hands programmes 35 Cologne (1999) 97 Common Strategy with Russia (1999) 97 Convention on the Future of Europe 3, 135; caveats 137; and CEECs 136–8; nominations to 137; official status of representatives 137–8 Copenhagen (2002) 56, 60, 103, 136 Corporate Governance Risk Survey 33, 41 Council of Europe 7, 50 crime, and draft constitution 141–2, 144; drugs 96, 97; judicial cooperation 119–20; moral panic over 7, 8; people trafficking 96, 97; perception of 4–7; reduction in 7; and Slovak–Ukraine border 76, 78, 84, see also organized crime Czech Criminal Code 36–7 Czech Republic/Slovakia 136, 143–4; achievements 16–19; and asylum-seekers 13–14; backlash against communist period 5–6; and border regimes 9–11, 17; challenges 19–20; cooperation with international law enforcement agencies 42–3; crime in 4–7, 25, 26, 28, 30–1, 34; and economic reforms 4–5; foreigners living in 5; and immigrants 4–7, 12–13, 14;

internal security agenda 2–3; joining new Europe (2003–) 16–20; policing in 14, 18; position papers 9; preparing for EU accession (1996–2002) 7–16; security system in 39–40 Czech Security Intelligence Service 34 Czechoslovak Penal Code 37 decision-making system 124–7, 130 draft constitution, and CEECs 142–6; and Charter of Fundamental Rights 114–16; cumbersome compromises in 131–2; and democratic/judicial control 128–30; division of powers/subsidiarity 121–3; implementation of 127; judicial cooperation in civil matters 118–19; judicial cooperation in criminal matters 119–20; new legal framework 112–14; overall assessment of 130–2; and police cooperation 120–1; policies on border checks, asylum, immigration 116–18; possible effect on AFSJ 112–32; prospects after failure of IGC (2003) 132–4; reforms of decision-making system 124–7; revised policy-making objectives 116; solidarity as new integration principle 123–4; as unbalanced 131 Dublin (1990) 67 East Central Europe (ECE), democratic changes in 27–9; increase in crime in 28–9; international cooperation 42–3; judiciary in 41; legal systems of 36–8; legislation in 28; organized crime in see organized crime; restructuring legal systems 44; security forces in 38–41; social success in 27–8; in transition 29

172 Index

European Commission 3 European Committee on Crime Problems report (1999) 31 European convention on Extradition 42 European Convention on Human Rights 115 European Convention on Mutual Assistance in Criminal Matters 42 European Convention on the Suppression of Terrorism 42 European Judicial Network 55 European Union (EU), changes in political climate in 158; effect of new neighbours on 89–90; external effects of enlarement 90–3; internal security 149–50; justice/home affairs requirements 7–8; and liberalization of movement 157–9; negative list of countries 67, 70; pillars 112–13, 131; preparation for accession to 7–16; and security threats 155–7 Europol 42, 115 foreign policy, attempt to bind third countries 93–4, 95–6; border security 95; drug trafficking 94; immigration/asylum-seeking 94; importance of 94; migration 94; non-military aspects 94; police/judicial 94; and readmission agreements 95–6 GUUAM

102

Hill, R.J. 93 human rights 54 Hungary 136; crime in 25, 26, 31; ‘mafia bill’ 38; security system in 39 immigrants, immigration 4–7, 12–13, 14, 29; Action Plan (2000)

97; and draft constitution 113, 116; illegal 78–81, 102; labourbased 81–4, 92; and Poland 51, 53, 54–5 Intergovernmental Conference (IGC) (2003) 132–4, 135, 137, 143, 144–5 internal security, and accountability 159–60; and AFSJ 1–2; and civil rights campaigns 160; and common definition of terrorism 155; crime, immigration, tourism 4; developments in 1; and draft constitution 110, 111, 114; economic threats 4–5; EUinspired changes 152–3; external dimension 95; future politics of 159–61; as highly sensitive issues 152–4; hyperactivity by EU 157; impact of September 11th on 154–7; implementation of measures 159; micro security/ macro-security concerns 151; military threats 4, 6; and movement of people 157–9; and politics of borders 151–4; priorities/problems 2; and privatization of security threats 151; and search and arrest warrant 155–6; as sensitive area 161; threat perceptions 156–7, see also border controls; Czech Republic/Slovakia justice and home affairs (JHA) 48–9, 68; agenda 1; agenda for 149; closure of 16; and draft constitution 111; EU requirements 7–9; external governance in 104–5; foreign policy dimension of 93–6; further initiatives 101–2; and members-to-be 138; and Moldova 101; movement between countries 17–18, 19–20; new neighbour role in 89–90;

Index 173

justice and home affairs – continued and Poland 50–1, 54–5, 56, 58, 59; public awareness of 16–17; relations with new eastern neighbours 96–102; and Russia 97–9; special character of 49–50; and system of mutuality 20; twostage procedure 50; and Ukraine 99–100 Löwenhardt, J. 93 Luxembourg (1997)

68

Moldova 93, 96, 101 Moldova Country Strategy Paper (CSP) (2001) 101 NATO 1, 4 Northern Dimension Initiative (NDI) 98–9 Octopus project (1996–98) 33 organized crime 25; access to Western Europe 33; Action Plan (2000) 97–8; classical activities of 26; conclusions concerning 43–4; and democratic changes 1980s/1990s 27–9; drugs 26–7; economic basis 27; in economy/ society of ECE 32–5; fight against 53; international 29–30; and international cooperation 42–3; judicial/police cooperation 97; and the judiciary 41; measures against 97–9; numbers involved in 30, 31, 32; phenomenon of 26–35; and reconstruction of legal system 36–8; responses to 35–43; restructuring of 29–32; Russian participation in 34; and security forces 38–41; as serious threat 43–4; socialist style 26–7; spread of 152; transit areas/target countries 30–1; types of groups 30–2; violence of 33, see also crime

Partnership and Cooperation Agreement (PCA) 97, 101 Poland 4, 90, 98, 136, 143; accession preparations 48; accession-linked processes 52; border issues 50, 51, 54–5, 56, 57, 60, 61, 91, 92; challenges for 56–9; and coherent strategic policy making 54–5; cooperation with international law enforcement agencies 42; and cooperation/exchange of information 54; costs/benefits of accession 59–61; creation/strengthening of legal framework 52–3; crime in 25, 26, 28, 32, 53–4; financial aspects 56, 57, 60; immigrants in 51, 53, 54–5; improvement in staffing, training, equipment 54; opportunities for 52–5; overall benefits/opportunities 55; postaccession challenges 48–9; security system in 40; socioeconomic challenges 57; sociopolitical concerns 58–9; as special case in field of JHA 51–2; trade implications 57–8; transformation of political system 51; and visa regime 51–2, 53, 56–7, 58–9, 92 police 120–1 Polish Criminal Code 37–8 Pre-accession Pact on Organized Crime (1998) 42 Russia 98, 104; border issues 91–2; cooperation with JHA 97–9 Schengen acquis 48, 50, 55, 68–70, 91, 95, 138–9, 141 Schengen Agreement (1985) 1, 9, 11, 49–50, 114, 150, 158 Schengen Group 94 Schengen Information System (SIS) 49, 139

174 Index

Schengen Treaty, Implementation Convention (1995) 67 security issues see border controls; internal security September 11th 141, 150, 154–7 Slovak–Ukraine border, adapting visa policy to EU acquis 68–70; background 65–6; bilateral policy context 702; border regime before 1999 66–8; and Concept of alignment (2000) 69; conclusions concerning 84–6; crime 76–8; and Harmonisation of visa policy with EU 69; illegal migration 78–81; impact of EU accesion on border regime 66–72; impacts of visa regime on 72–84; labour migration 81–4; legal movements of persons/transport 72–6; liberalization of regime 67; regulatory measures 67; travel documents 67; treaties (1993) signed 66–7; visa regime 92 Slovakia see Czech Republic/Slovakia Soviet Union 4, 25 subsidiarity 121–3 Tacis (CBC) programmes 98, 101 Tacis Regional Cooperation Strategy Paper (2004–6) 98 Tampere European Council (1999) 154 Task Force on Organized Crime 99

terrorism 141, 154–7, 157 Treaty of Amsterdam (1999) 7, 11, 49, 68, 94, 97, 99–100, 111 Treaty of Maastricht (1993) 110 Treaty of Nice 136, 143, 145 Treaty of Rome 150 Ukraine 96, 104; aim to become full-fledged EU member 100; cooperation with JHA 99–100; and illegal migration 100, 102; and trafficking of people 100; visa-free travel with Poland 92, see also Slovak–Ukraine border UN Convention against Transnational Organized Crime 42 United Nations (UN) 7 visas 17–18; adapting policy to EU acquis 68–70; impact of implementing 65–6; negative reputation of policies 153; and Poland 51–2, 53, 56–7, 58–9, 92; requirements for 17–18; and Slovak–Ukraine border regime 72–84 Visby Summit (1996) 99 Wæver, O. 4 White, S. 93 Wider Europe initiative 102–4, 105 Wilde, J. de 4 working group (WG) X ‘Freedom, Security and Justice’ 138, 140