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

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interpret the national norms of criminal procedure in light of the EU Framework Decision. Consequently, those young children, victims of maltreatment, were to be authorised to give their testimony in accordance with arrangements that guaranteed them an appropriate level of protection. This decision was controversial - not least because it increased the scope of national law. 509 To be sure, the role of the victim is also acknowledged in the text of many framework decisions. The Framework Decision on terrorism, for instance, provides that investigations and prosecutions shall not be dependent upon a complaint by a victim and that Member States must provide support to victims’ families. 510 The Framework Decision on trafficking in human beings and the Framework Decision on sexual exploitation of children contain similar provisions with the additional condition that children should be considered as ‘particularly vulnerable’ (interpretation also confirmed by the CJEU in the Pupino case). 511 The Framework Decision on organised crime also mentions that investigation and prosecution shall not be dependent on the complaint of the victim. 512 The idea of protection of the victim at EU level appeared to have at this stage at least two particular features. The first relates to the type of victim in question. EU law focuses more on the protection of particularly vulnerable victims than on any other victim (along the lines of the Pupino case and other framework decisions). Second, the protection of the victim often suits prosecutorial goals as it focuses largely on the procedural conditions for the victim to provide evidence and be a part of the investigation and judicial process and for the latter not to be dependant on the victims’ will to initiate or pursue criminal proceedings. The fine line between the protection of the victim and its prosecutorial benefits is clearly seen in relation to third country nationals, victims of trafficking in human beings. The Council Directive on the residence permit issued to third-country nationals who are victims of trafficking in human beings who cooperate with the competent authorities, for example, defines the conditions for national authorities to grant short term residence permits (generally 6 509 The principle of indirect effect had only been recognised thus far in relation to first pillar instruments and this obligation appeared as conflictual to some degree given the ‘weak’ legal nature that that framework decision had been imbued with. Para 43 and 61 of the judgement, Case C-105/03, Pupino, supra note 390. Recently the Court further clarified that the same Framework Decision aimed at ensuring the victims’ rights of participation in the criminal procedure; whilst this did not preclude a Member State to impose mandatory penalties of a minimal duration even against the victim’s wishes, Joined cases C-483/09 and C-1/10, Gueye and Salmeron Sanchez, 15 September 2011, decision not yet published. 510 Council Framework Decision 2002/475/JHA, Article 10, supra note 413. 511 Council Framework Decision 2004/68/JHA, Article 7, supra note 414. 512 Council Framework Decision 2008/841/JHA, Article 8, supra note 416. 136
months) to third-country national victims of trafficking or to facilitate illegal immigration for those who cooperate in the fight against trafficking in human beings. 513 Such victims can be entitled to a short-term residence permit as long as they are cooperating with police investigations or judicial proceedings, manifest a clear intention to cooperate and have severed all relations with those suspected of crimes. 514 If these conditions are not fulfilled – hence when the victim no longer is able or willing to cooperate with the authorities or in case it re-enacts or does not break ties with hers or his traffickers – he or she shall be expelled from the European Union. 515 Although these measures speak directly to the intertwining of criminal law and EU/ EC policies, and the indirect implications that measures such as the framework decision on trafficking in human beings have on immigration policies, it is a clear example of the use of the victim for prosecutorial benefits to their possible detriment and with disregard of their other fundamental rights. 516 Whilst the protection of victims’ rights was settled comfortably in EU legal narratives, the rights of suspects were not yet, at the time, directly acknowledged by a third pillar instrument. 517 Vogel, for instance, noted how in the system of EU criminal law “the interest of the prosecuted person and their defence was clearly neglected. Indeed, the defence is simply missing from the integrated European criminal justice system as it stands now.” 518 Kaiafa-Gbandi remarked that “…characteristic are not only the divergence from basic criminal law principles but also the lack of fundamental rights institutional protection within the EU framework, 513 Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities, OJ L261/19 [2004]. 514 Article 8 (1), ibid.. 515 Articles 13 and 14, ibid.. 516 For more details see H. Askola, Legal Responses to Trafficking in Women for Sexual Exploitation in the European Union, supra note 381, 92-95. 517 To be sure, the rights of the defendant remained ackowledged and protected at national level accoridng to Member State’s own rules on criminal procedure. Furthermore, For an overview of defence rights in a broader European context (EU, Council of Europe – ECHR and 9 different national jurisdictions) see E. Cape et al., Effective Criminal Defence in Europe (Antwerp/Oxford/Portland: Intersentia, 2010) or for a practical perspective, see E. Cape et al., Suspects in Europe, Procedural Rights at the Investigative Stage of the Criminal Process in the European Union (Antwerp/ Oxford/ Portland: Intersentia, 2007). 518 J. Vogel, “The European Integrated Criminal Justice System and its Constitutional Framework” (2005) 12 Maastricht Journal of European and Comparative Law 125, 136. 137
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The London School of Economics and
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Abstract This thesis addresses the
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However, the journey of writing thi
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3. The scope of intervention: the e
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4. The emergence and development of
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Introduction: The nature of Europea
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This dissertation seeks to advance
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account as a reference. Indeed, sev
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Whilst the distinctive criteria of
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it makes sense to consider the doma
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creation of summary offences tried
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want to be talking about a simple a
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contemporary societies that primari
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influence on Member States to intro
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But what defines these Euro-crimes
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significantly broader range of crim
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legal orders that punish more sever
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enforcement agencies were keen to e
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framed. 98 The principle of direct
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obligations were further confirmed
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Moreover, other realms of interacti
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Hence, the Court, whilst recognisin
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for some understanding of the first
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“The Commission’s efforts and i
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trafficking), and especially about
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The central actors in the Trevi fra
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justice and home affairs matters un
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Likewise, the Programme of Action t
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means to repatriate third country n
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“Each Member State shall take app
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“For that purpose, whilst the cho
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limiting national criminal law, it
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“…synthesis of the arrangements
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of Action relating to the reinforce
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the single market and the consequen
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Rather limited in scope and depth,
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The need for more openness in the w
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not subject to control or enforceme
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the individual. The building of a m
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Initiatives ranged from the creatio
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etween police forces in matters of
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evenue. 298 Along the same lines, t
Page 85 and 86: identified in the TEU(M) It was see
Page 87 and 88: esponsible for the formalisation of
Page 89 and 90: Indeed, already in 1996, organised
Page 91 and 92: Finally, besides the political and
Page 93 and 94: particularly those initiatives that
Page 95 and 96: and drug trafficking, hence giving
Page 97 and 98: trade. 356 The Court continued by n
Page 99 and 100: well as the first protocol. 366 The
Page 101 and 102: crime is a fluid concept, with loos
Page 103 and 104: means of transport, telecommunicati
Page 105 and 106: Chapter 3 The evolution of European
Page 107 and 108: 1. Treaty of Amsterdam: expansion a
Page 109 and 110: positions would be suited to define
Page 111 and 112: The author noted how it was adopted
Page 113 and 114: 2. The new scope of European Union
Page 115 and 116: these political declarations, which
Page 117 and 118: thirty years and epitomises and imp
Page 119 and 120: phenomenon and of the multifaceted
Page 121 and 122: within the scope of instruments alr
Page 123 and 124: Furthermore, the criminalisation of
Page 125 and 126: interests (in this case the single
Page 127 and 128: More notably, the most significant
Page 129 and 130: The Court decided with the Commissi
Page 131 and 132: Regardless of the Court having plac
Page 133 and 134: in particular fields, thus solidify
Page 135: However, competence to enact legisl
Page 139 and 140: derogations); 525 others proposed f
Page 141 and 142: ecognition of national sentences, p
Page 143 and 144: 2. The features of the new supranat
Page 145 and 146: criminal matters and, if necessary,
Page 147 and 148: with a cross border dimension. Ther
Page 149 and 150: question of ‘why criminal law’,
Page 151 and 152: e affected by ECL law. 562 This dec
Page 153 and 154: Chapter 4 Harmonisation of national
Page 155 and 156: Harmonisation was felt to be necess
Page 157 and 158: matters. Indeed, the European Union
Page 159 and 160: This provision portrays a criminal
Page 161 and 162: “a structured group of three or m
Page 163 and 164: development is in line with the rea
Page 165 and 166: economic loss; (e) seizure of aircr
Page 167 and 168: Framework Decision, which obliged t
Page 169 and 170: possession, among others. 630 A stu
Page 171 and 172: Again, the EU’s provision was bro
Page 173 and 174: liability is a sensitive issue whic
Page 175 and 176: 3.2. A focus on minimum maximum pen
Page 177 and 178: the threshold demanded by EU law. T
Page 179 and 180: of ensuring a degree of homogeneity
Page 181 and 182: Framework Decision on trafficking i
Page 183 and 184: inging about a harsher criminal law
Page 185 and 186: extraterritoriality to nothing less
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development of the single market -
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“(… )involves the recognition o
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These changes in extradition across
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arguments against extradition of na
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To be sure, concerns with fundament
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text of the preamble does not amoun
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States should not have to use their
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e partly explained by the fact that
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“Confidence in the application of
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2007, Polish authorities requested
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With these judgements, the Court st
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does not deem the acts in question
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discretion in Title VI TEU(A), one
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Such reasoning led the Court to con
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was committed by a national abroad
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Furthermore, the list of types of o
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“without any further formality be
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An EEW can only be issued with the
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“The competent authorities in the
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prisoners with the view of ‘facil
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The preamble explains this choice b
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3.3.3 Probation and alternative san
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prosecuted elsewhere in the EU. Rat
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of drugs between two Schengen count
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definitely bar further prosecution
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Conclusion The introduction and dev
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Chapter 6 Conclusion: Towards a Eur
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Measures adopted along these narrat
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implementation of Union policies. 9
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persons acting together; in the fra
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policies appeared as the main crite
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preceding any legislative proposal,
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suggests that mutual recognition wi
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clear in relation to the EAW. In fa
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It is beyond the scope of this thes
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Furthermore, Article 6 TEU(L) confe
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that may endanger his or her life,
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communication upon arrest 1012 is u
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penal values in the future. Similar
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Member State of execution, irrespec
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as how long the individual concerne
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6. A renewed challenge for coherenc
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Bibliography Books and articles Aba
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Deen-Racsmany, D., “The European
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Hinarejos, A., Spencer, J.R., and P
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Xanthaki (eds) Towards a European C
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Szymanski, J., “Discretionary Pow
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Legislation and other sources by ty
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Council Directive 91/477/EEC of 18
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Joint Action 96/602/ JHA of 14 Dece
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Proposals Portuguese Republic, Init
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supervision order in pre-trial proc
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Council Doc. 9067/06 on the Proposa
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Case C-186/98 Criminal proceedings
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Agreement on the Application betwee
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Websites and links http://www.eurow
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