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

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although the EU has already organs whose action may infringe people’s rights (i.e. Europol)” whilst showing concern with the “…additional plus of deficits of the liberal element that in parallel [to prosecution and punishment] 519 accompanies criminal law as a measures of people’s freedom”. 520 To be sure, the European Commission had put forward a Green Paper on Procedural Safeguards for suspects and defendants in criminal proceedings 521 and subsequently a Proposal for a Framework Decision on certain procedural rights in criminal proceedings throughout the European Union. 522 However, agreement in relation to the latter failed despite only five basic rights being covered: “access to legal advice, both before the trial and at the trial; access to free interpretation and translation; ensuring that persons who are not capable of understanding or following the proceedings receive appropriate attention; the rights to communicate, inter alias, with consular authorities in the case of foreign suspects; and notifying suspected persons of their rights (by giving them a written “Letter of Rights”).” 523 Disagreements were many: 524 some Member States asked for derogations and limitations of some provisions, for example, in cases where there is suspicion of involvement of the suspect in terrorist activities (the main provisions affected would be the right to legal advice and of communication; the Commission was opposed to these 519 Our parenthesis. 520 M. Kaiafa-Gbandi, “The Treaty establishing a Constitution for Europe and challenges for criminal law at the commencement of the 21st Century” (2005) 13 European Journal of Crime, Criminal Law and Criminal Justice 483, 484-485. Some authors further develop such matters, namely by proposing possible solutions and paths forward. See, for instance A. Klip, “The Constitution for Europe and Criminal Law: a step not far Enough” (2005) 12 Maastricht Journal of European and Comparative Law 115-123; B. Schünemann, “Alternative project for a European criminal law and procedure” (2007) 18 Criminal Law Forum 227. 521 Green Paper on Procedural Safeguards for suspects and defendants in criminal proceedings, COM (2003) 75 final, 19.2.2003. 522 Proposal for a Framework Decision on certain procedural rights in criminal proceedings throughout the European Union, COM (2004) 328, 28 April 2004. 523 Para 24, page 7, ibid.. 524 Peers mentions the UK as the main opponent of the measure, having led several Member States in opposing the measure, de facto blocking any possibility of its approval under the Amsterdam framework, S. Peers, EU Lisbon Treaty Analysis no 4: UK and Irish opt-outs from EU Justice and Home Affairs (JHA) law, Version 3, 26 June 2009, Statewatch, 9. 138
derogations); 525 others proposed further rights to be added, such as a right to silence as well as to the inclusion of ‘suspected persons’ and not only defendants. They found the existent rights to be “too vague and set at too low a threshold”, 526 whilst in general the question of whether the EU had competence to legislate in procedural matters was in itself highly controversial. 527 The difficulties in the adoption of this latter instrument epitomise the greater emphasis that was being been given to the discourse of criminalisation namely in relation to organised crime and serious forms of criminality (and related ideas such as that of victimhood). The latter had been favoured to the detriment of more procedural and defendant-related approaches to criminal law. Indeed, even if the argument was to be accepted that the TEU(A) did not provide a legal basis for the EU to enact measures regarding procedural guarantees, such an argument could have been equally valid vis-àvis the adoption of some harmonisation measures which sought the criminalisation of behaviours of organised crime or EC interests and policies related, let alone victims’ rights on criminal procedure. However, as seen, the silence of the TEU(A) on these matters suited diverse goals differently. On the one hand, the provisions of the TEU(A) were interpreted broadly regarding criminalisation (and also victims’ rights), thus allowing for the enactment of framework decisions in domains not directly mentioned in Article 29 or 31 (e) TEU(A); on the other hand, however, they were interpreted narrowly in relation to rights of suspects and defendants as some actors argued for EU’s lack of competence. 528 2.2. Beyond Euro-crime and narratives: the ever-expanding scope of ECL Whilst the hub of ECL continued to be Euro-criminality and these three justificatory themes continued to play a central role in the preambles and texts of most legal acts, other discrete themes were also present. The most important of these was the fight against terrorism which after 2001 became quite visible in the EU’s political discourse 525 C. Morgan, “Proposal for a Framework Decision on certain procedural rights applying in proceedings in criminal matters throughout the European Union”, in M. Leaf Cross-Border Crime: Defence rights in a new era of international judicial co-operation (Justice, 2006) 93, 100. 526 House of Lords, European Union Committee, 9th Report of Session 2008-09, “Procedural Rights in EU criminal proceedings – an update”, Authority of House of Lords, London, 11 May 2009, 5-6. 527 Lööf, for example, was of opinion that the EU could already legislate in areas of procedural safeguards to the extent in which it was strictly necessary for the operation of the principle of mutual recognition, R. Lööf, “Shooting from the Hip: Proposed Minimum Rights in Criminal Proceedings throughout the EU” (2006) 12 European Law Journal 421, 428. 528 This scenario is now changing in the post Lisbon framework. See below in this chapter and chapter 6. 139
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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
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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
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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 and 136: However, competence to enact legisl
Page 137: months) to third-country national v
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
Page 187 and 188: 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
Page 275 and 276:
Hinarejos, A., Spencer, J.R., and P
Page 277 and 278:
Xanthaki (eds) Towards a European C
Page 279 and 280:
Szymanski, J., “Discretionary Pow
Page 281 and 282:
Legislation and other sources by ty
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Council Directive 91/477/EEC of 18
Page 285 and 286:
Joint Action 96/602/ JHA of 14 Dece
Page 287 and 288:
Proposals Portuguese Republic, Init
Page 289 and 290:
supervision order in pre-trial proc
Page 291 and 292:
Council Doc. 9067/06 on the Proposa
Page 293 and 294:
Case C-186/98 Criminal proceedings
Page 295 and 296:
Agreement on the Application betwee
Page 297:
Websites and links http://www.eurow
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