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The Eurojust Agreement crosses the Ukrainian finish line

March 8, 2017

Following an interesting few days surrounding the Nasirov arrest and eventual incarceration (at least until bail is made), President Poroshenko has put his signature upon the agreement between Ukraine and Eurojust.

The agreement was signed on 27th June 2016 by Prosecutor General Lutsenko and Eurojust President Michele Coninsx.

On 8th February 2017, the Verkhovna Rada, albeit with only 230 votes in favour (from the 346 parliamentarians registered in the session hall) passed a law ratifying the Agreement.  (A minimum 226 votes in favour required for a simply majority vote.)

8th March 2017 witnessed President Poroshenko sign the ratifying law into existence and lo, the Agreement between Ukraine and Eurojust is now binding upon Ukraine.

Ukraine is the 9th third party State that Eurojust has such an Agreement with.

Yet despite this Agreement seemingly being a path as yet untraveled by Ukraine, a reader should note that since 2005 it has been involved in 70 Eurojust cases and 26 Eurojust coordination meetings.

The 12 page Agreement in reality formally codifies what would appear to have been happening in some shape, form or manner (de jure or de facto) 70 times since 2005. – that “cooperation” for the most part being the transfer of operational and personal data, presumably in line with EU Regulations.

There are a few interesting personnel appointment issues that come from this Agreement entering into force, but before raising those, it is perhaps worth noting a rather flexible but fundamental definition therein.

Article 2 – The purpose of this Agreement is to enhance the cooperation between Eurojust and Ukraine in combating serious crime, particularly organised crime and terrorism.

This seems to be rather elastic prose – perhaps rightly.

While the emphasis clearly focuses on organised crime and terrorism, it also covers the broad scope that can be variously stretched to be “serious crime” when expedient.

Equally there are questions to be asked over whose definition of organised crime is relevant?

Likewise a question over the definition of “terrorism” – for there is no globally accepted definition of terrorism.  (The last UN attempt to arrive at a definition of terrorism led by Kofi Annan was in 2006 – and like all previous attempts failed for a number of reasonable arguments presented by Member States.)

Elastic Article 2 wordsmithery aside, Ukraine now has some personnel issues to decide.

Article 5(1) provides that Ukraine nominate a Liaison Prosecutor (plus one Deputy) to Eurojust.

With the emphasis of the Eurojust AGreement aimed at organised crime and terrorism, (and the line is often smudged with one financing the other), from which of the designated specialist tentacles of the PGO is the most appropriate Liaison Prosecutor to be found?  Is the Deputy to be of a different relevant specialism, or simply an adequate replacement when the Liaison Prosecutor is unavailable?

Presumably matters for Yuri Lutsenko.

Article 7 obliges Ukraine to nominate (at least one) Correspondent for Terrorism Matters.  A role for a prosecutor – or a counter-terrorism expert, or an active CT officer?   SBU, SZRU or NSDC?  One from all three – or perhaps all four institutions?

If the Correspondent(s) for Terrorism Matters is/are not appointee(s) from within the PGO then surely their appointment is beyond the remit of Mr Lutsenko – despite the President stating the Prosecutor General is now responsible for implementing the Agreement.

Yet further, who will act as liaison for the minefield that is data protection and its transfer?  Personal as well as institutional accountability will be essential – for it is a very expensive matter to get wrong.

T’will be interesting to see who is appointed as what – and when.

On personnel issues from without heading into Ukraine, t’will also be interesting to see whether Article 6 is ever applied.

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