Saskia Hufnagel

Regulation of cross-border law enforcement: ‘locks’ and ‘dams’ to regional and international flows of policing

ABSTRACT Trans-jurisdictional policing can eventuate within a number of different environments: in federal states comprising different jurisdictions, in bilateral and multilateral settings and in regional contexts, for example, in the European Union (EU). Inter-jurisdictional flows of policing can be impeded by, for example, legal differences, lack of trust, lack of cooperative leadership, lack of knowledge about the other jurisdiction, etc. This article aims at exploring the facilitators of flows of policing by looking at two different systems and the obstacles within, as well as the interaction between them. The systems chosen are Greater China and the EU as they both comprise a number of different jurisdictions and are very distinct with regard to political, cultural and legal variables. It will be explored whether and how flows of policing are encouraged by legislation within and between the systems as well as what factors might determine the conclusion of a particular legal framework for cooperation.

The Beltracchi Affair: A Comment and Further Reflections on the “Most Spectacular” German Art Forgery Case in Recent Times

On 27 October 2011 the four persons accused of the “most spectacular” art forgery case in German post-war history were sentenced to jail terms ranging from 21 months to 6 years.5 The accused were Wolfgang Beltracchi (61), the painter of the forged works; his wife Helene Beltracchi (53) and her sister Jeanette Spurzem (54) who helped him in various ways; and the “logistical expert”6 in the case, Otto Schulte-Kellinghaus (68).7 Considering the financial damage the forger group had caused, the embarrassment of buyers, dealers, experts and auction houses, as well as the considerable publicity the trial incurred, this seemed a remarkably mild verdict. However, observing the way in which art forgers at large appear to be dealt with by the justice systems of various countries, it could be said that the case just confirms a reoccurring pattern of lenient sentencing.8

Targeted Sanctions, Crimes and State Sovereignty

Targeted sanctions involve the blacklisting of a particular group of persons, whether individuals or legal entities, and subjecting them to restrictive measures such as the freezing of assets or travel sanctions. Targeted sanctions have emerged as a milder, humanitarian alternative to comprehensive sanctions such as trade embargoes, which are imposed on whole states.1 Th ey have also been used against supposed terrorists.2 In essence, the term ‘targeted sanctions’ describes a mechanism that can be employed in a variety of contexts depending on the criteria used for designating the persons targeted.3 States may resort to the mechanism of targeted sanctions either of their own initiative, or within the framework of regional organisations such as the EU, or at the urging of the UN Security Council. If targeted sanctions are promulgated by the UN Security Council, all UN member states are obliged to implement such sanctions in their domestic legal orders.4 Th e UN thus relies on individual states and the EU for the implementation of the targeted sanctions regimes enacted by the UN. All other targeted sanctions regimes, including those introduced by the EU of its own accord, are ‘unilateral’ in a sense that they are not based on a decision which all UN member states are bound to accept and carry out. Th ere is a consensus that unilateral actions of non-military nature are not in confl ict with international law unless an identifi able rule of international law is breached.5 In

The Penal Elements of Targeted Sanctions

It is appropriate to pre-empt the question as to why this journal is devoting an issue to restrictive measures imposed on individuals by the EU. Aft er all, the Council of the European Union, the institution that imposes the measures, regards them as administrative in nature and to date no court has ruled that these measures are properly characterised as falling under the criminal law. Th is fact has not gone entirely without criticism, because the degree of fundamental rights protection in respect of restrictive measures varies according to their characterisation. Th us in ‘Th e freezing of terrorists’ assets: preventative purposes with punitive eff ects’1, Galli states that the distinction between administrative and criminal law remains blurred and contends that because of the importance of the classifi cation for fundamental rights protection, clarifi cation is ‘urgent’. If preventive measures are in eff ect penal in character and thus better understood as forms of pre-punishment, their use would require the application of higher standards of proof than “suspicion” even where there is a threat of serious harm.2 Th is special edition was not conceived to discuss, far less to resolve, this issue. It was conceived to discuss substantive matters on the undiscussed presumption that the eff ect of restrictive measures and the relative lack of process prior and subsequent to their adoption engage or are of interest to the criminal law, lack of judicial clarifi cation notwithstanding. By way of explaining this presumption, it may be pointed out that sanctions are never imposed on individuals in the absence of fault or wrong-doing, perceived, suspected or proven, wherever this fault or wrong-doing may lie. In some cases the ‘fault’ may lie with the state of which the targeted individual is a national and whose conduct the EU wishes to change. In other cases it may lie with the individuals themselves as in the case of persons under judicial process in the third country whose conduct the EU wishes to assist. And in other cases the fault is with the individual

Harmonising police cooperation laws in Australia and the European Union: the tension between local/national and national/supranational interests

This article gives a background to police cooperation approaches in both Australia and the EU. Cooperation strategies are divided into Australian Federal/European Union strategies and regional (Australian state and territory and EU member states) cooperation strategies. Examples are highlighted where cooperation is hampered by national or state and territory sovereignty interests. Problems are discussed in relation to both entities, such as the different legal regimes, lack of trust, media attention and funding, the importance of the ‘personal factor’ andeducation. This article focuses in particular on the role of the practitioner. Practitioners, on the one hand, may overcome the negative attitude of their organisations and develop personal networks which transcend borders. On the other hand, a practitioner can embody the obstructive attitude of the organisation he/she represents. The article concludes by giving recommendations for future legislative and practical responses to the existing problems.