This blog post briefly presents European Union (EU) judicial cooperation in criminal matters with China, its historical development, current practice and possible improvements and, as a particularly relevant issue for the future, the impact of Brexit on judicial cooperation between the EU, the UK and China.
Historically, EU judicial cooperation was grounded in the Council of Europe (CoE) Conventions on Mutual Legal Assistance (1959) and Extradition (1957). These legal frameworks have in the EU context been further developed into new instruments, such as the European Arrest Warrant (2002) and the European Investigation Order (EIO) (2017), which partly replaces the 2000 EU Mutual Legal Assistance Convention. Through these instruments the EU judicial cooperation in criminal matters has developed into a very advanced framework, that could even be compared to a federal system of governance. However, the current working of this cooperation is threatened by the exit of an important member state, the UK. In the event of an exit, all EU judicial cooperation instruments cease to apply to the UK. This would not only have a detrimental effect on the UK as the common law system heavily relies on them, but also on all EU member states cooperating with the UK. The UK is one of the few countries within the EU that works under the common law system making, in particular the exchange of evidence very complex without the availability of EU supranational mechanisms facilitating it. This could also affect other parts of the world that rely on the EU legal frameworks to cooperate with the UK and that have to grapple with a multiplicity of legal systems themselves, such as Greater China.
In Europe and China as well as other nation states around the world police and judicial cooperation was in the 19th Century carried out by Letters Rogatory (ILORs). However, while European countries specialised their cooperation after the mid-1950’s, cooperation between China and other nation states was never governed by specialised binding regional cooperation treaties. In Europe, closer cooperation started with the Nordic Cooperation Agreement (NCA) 1962 (between Sweden, Norway, Denmark, Iceland and Finland). These nations also subsequently established the ‘Nordic Arrest Warrant’. Equally, the Benelux countries (Belgium, the Netherlands and Luxembourg) facilitated judicial cooperation through the Benelux Treaty 1949 and 1958 on Economic Cooperation. Subsequently, the CoE created cooperation instruments on Extradition (1957) and Mutual Legal Assistance (1959) valid for all members. While the CoE is open to nations outside of Europe, China is not a member.
In the mid-1980’s, supranational European frameworks on police and judicial cooperation started to develop, unique to the EU: in 1985, the Schengen Convention, in 1998, the European Judicial Network, in 2000, the EU Convention on Mutual Legal Assistance in Criminal Matters (now EIO), in 2003, the European Freezing Order, and in 2004, the European Arrest Warrant. Supranational judicial cooperation frameworks are not applicable to China, with the exception perhaps of the United Nations (UN) suppression conventions, such as the 2003 United Nations Convention against Corruption (UNCAC), the 2000 United Nations Convention against Transnational Organized Crime (UNTOC) or the 1988 Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. However, the provisions encouraging judicial cooperation contained in these conventions are not binding and formulated broadly, fostering further bilateral agreements to be concluded, which is different to the EU supranational legal instruments.
The judicial cooperation measures that were developed in the EU are based on trust and similarities in human rights systems creating a harmonisation of criminal procedural values. Nevertheless, many EU member states have also concluded judicial cooperation agreements with countries outside the region and neither abiding by similar procedural norms or the European Convention of Human Rights. In particular, several EU member states (in particular Southern European countries) have concluded extradition and mutual legal assistance agreements with China. Other EU member states, such as Germany, support Chinese judicial training and developments through long term programmes, but have not established any judicial cooperation agreements.
Considering the lack of cooperating structures between China and the EU as a whole one could ask whether there are any effects of Brexit on cooperation with China at all. The UK has no extradition treaty with China, but since 2016 both countries have concluded the Treaty between the United Kingdom of Great Britain and Northern Ireland and the People’s Republic of China on Mutual Legal Assistance in Criminal Matters. The treaty is not connected to any EU instruments and as an independent bilateral agreement valid beyond Brexit. As the UK could even as an EU member state not pass on information and evidence by other member states to countries outside the EU without agreement by the state which transferred the information to the UK, China has also not lost access to EU information through Brexit. In terms of judicial cooperation there is hence no downside of the European developments on China.
Europol has furthermore since 2016 a strategic agreement with China which is relevant for information exchange although focusing on police rather than judicial information. According to the agreement personal information cannot be exchanged between Europol and China. With an exit of the UK from the EU, the UK’s membership in Europol will come to an end and, like China, it will have to establish a separate cooperation arrangement as a third state with Europol to continue (limited) information exchange. By now agreements with Europol are called ‘arrangements’ as Europol is since 2016 an independent EU agency, which can enter itself into arrangements, but not agreements. The complications this might cause for China when cooperating through Europol are that information exchanged through the agency will now not include UK information and to receive the latter, China will need to cooperate with the UK through the separate agreements. However, this does not impede information exchange, but might slow processes down. Over all, cooperation will however continue.