The evolution of European Union criminal law (1957-2012)

in particular fields, thus solidifying the rationale around the adoption of criminal matters
for the protection of EC interests and expanding the previous remit of this narrative. 491
2.1.3. Fundamental rights and the victim on the rise
As EU competences broadened into further areas of criminalisation, new narratives
began to emerge in the third pillar, including the protection of fundamental rights via
criminal procedure. 492 To be sure, the CJEU had developed a significant body of
fundamental rights law based on national constitutional traditions and on the ECHR. In a
number of cases along the years, the Court recognised, for example, the right to effective
judicial remedy, 493 the right to be heard in one’s own defence before any measures are
imposed, 494 the right to presumption of innocence, 495 the right to a fair trial, 496 the right
to be informed of the nature and cause of accusation in a criminal trial, 497 the right to
protection from self-incrimination, 498 as well as non-retroactivity of penal liability. 499
However, as Craig and de Búrca note, despite the Court’s increasing engagement with
human rights, the number of cases in which the Court actually annulled the challenged
legislation is low, a dramatic exception being cases in the anti-terrorism field. 500
In the specific context of the third pillar, the protection of fundamental rights was
acknowledged in Article 6 TEU:
491 As will be shown below, the debate on the existence and scope of EC competence in criminal
matters was finally put to rest with the entry into force of the Lisbon reforms, which not only
created the conditions for the merging of the pillars into a single and common structure but also
specifically mentioned the possibility of using criminal law to protect and pursue EC policies and
interests, thus codifying the idea already developed by the EC over the years and spelled out by
the CJEU.
492 In the context of the first pillar the CJEU had already decided on some cases where it set
conditions on national procedural law in order to guarantee the effectiveness of EC policies and
objectives. This was the case in, for example, Ian Willian Cowen, the Court stated that the award
of State compensation for harm caused in that State to the victim of an assault could not be
condition on the victim’s holding of a residence permit or nationality, Case 186/87 ECR 195
[1989] para 19-20.
493 Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary ECR 1651 [1986].
494 Case 12/74 Transocean Marine Paint v Commission ECR 1063 [1974].
495 Case C-45/08 Specter Photo Group NV v CBFA ECR I-12073 [2009] and Case C-344/08
Rubach ECR I-7033 [2009].
496 Case C-305/05 Ordre des barreaux francofones et al v Council ECR I-5305 [2009].
497 Case C-14/07 Weiss v Industrie – und Handelskammer Berlin ECR I-3367 [2007].
498 Joint Cases 374/87 and 27/88 Orkem εt Solvay v Commission ECR 3283 [1989].
499 Case 63/83 R v Kent Kirk ECR 2629 [1984].
500 P. Craig and G. de Búrca, EU Law (Oxford: OUP, 2011) 372. The reference case in the antiterrorism
field in which the Court annulled EU law is Kadi I, Cases C-402 and 415/05 P Kadi &
Al Barakaat International Foundation v Council and Commission ECR I-6351 [2008].
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