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

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scope of the EEW. Hence, whilst there was a high degree of mutual recognition thus far in relation to surrender requests and financial sentences, mutual recognition of evidence was to be narrower. To be sure, the Framework Decision on the EEW never came into force and a Directive on an European investigation order with a broader scope has been proposed already. 824 Yet, for the understanding of mutual recognition post EAW it is of interest to analyse the EEW. An European evidence warrant is thus a judicial decision issued “with a view of obtaining objects, documents and data from another Member State for use in criminal proceedings…” 825 before a judicial authority or in proceedings before an administrative authority in respect to acts which may give rise to proceedings before a court with jurisdiction in criminal matters, including proceedings brought against a legal person. 826 The request must be executed “without any further formality being required and shall forthwith take the necessary measures for its execution in the same way an authority of the executing State would obtain the objects, documents or data…”. 827 In the case of the listed 32 offence types the executing State needs to ensure that search and seizure are available (whilst it is not obliged to use search and seizure for the other non listed offences). 828 Gathering”, in ERA-Forum, Special Issue on European Evidence on Criminal Proceedings, 2005, 28-40; for concerns relating to civil liberties in general see for example LIBERTY’s response to the Home Office consultation on the proposed European Evidence Warrant, July 2004; available at www.liberty-human-rights.org.uk/resources/policy-papers/index.shtml.; for concerns relating to due process see for example S. Gless, “Mutual Recognition, Judicial Enquiries, Due process and Fundamental Rights”, in J.A.E. Vervaele (ed) European Evidence Warrant: Transnational Enquiries in the EU (Antwerpen/Oxford:Intersentia, 2005) 121. 824 This new initiative will be considered in more length in chapter 6. Initiative (...) for a Directive of the European Parliament and of the Council of... regarding the European Investigation Order in criminal matters, OJ C 165/02 [2010]. 825 Article 1(1) of the Framework Decision 2008/978/JHA, supra note 821. 826 Article 5, ibid.. 827 Article 11, ibid.. 220
An EEW can only be issued with the view to obtaining documents, objects and data. 829 In fact, the Framework Decision goes to lengths to specify that an EEW cannot be issued to conduct interviews, take statements or initiate other types of hearing with suspects, witnesses, experts or any other parties; neither to carry out bodily examinations or obtain biometric data including DNA; nor to obtain information in real time such as interception of communications, covert surveillance or monitoring of bank accounts; conducting analysis on objects, documents or data; to obtain communications data retained by providers if a publicly available electronic communications service or network. 830 Furthermore, EEW can only be issued when the evidence sought is necessary and proportionate for the purposes of the proceeding and if the evidence could equally be obtained in a comparable case in the issuing State (even if different procedural measures apply). These conditions shall be assessed by the issuing State only. 831 The EEW was not only narrow in its scope. In fact, with it, dual criminality suffered its first set back with the introduction of a declaration by Germany, reserving its right to make execution of an EEW subject to verification of dual criminality when an EEW involved search and seizure in relation to the offences of terrorism, computer related crime, racism and xenophobia, sabotage, racketeering and extortion or swindling. 832 This blow to the principle of dual criminality – one of the main features of mutual recognition and mutual trust – was symbolic of the slowing down and progressive moderation of the principle. As seen earlier in this chapter, the abolition of dual criminality gave priority to the more severe penal law or, said differently, to the legal order which adopted broader definitions of conducts to be criminalised. Having accepted the abolition of dual criminality in relation to the 32 types of offences in the EAW, Germany has imposed limitations regarding what crimes it is willing to help other States to build their prosecution against. It will be seen in the next section that the mutual recognition measures that followed the EEW allow for Member States to reintroduce dual criminality fully. 828 Article 11 (3) (ii), ibid.. 829 Article 4 (1), ibid.. 830 Article 4(2) (a)(b)(c)(d)(e), ibid.. In this regard Belfiore notes how the EU Convention on mutual legal assistance in criminal matters of 2000 was more pioneering than the EEW as it included types of evidence not covered by the Framework Decision, R. Belfiore, “Movement of Evidence in the EU: The Present Scenario and Possible Future Developments” (2009) 17 European Journal of Crime, Criminal Law and Criminal justice 1, 17. 831 Article 7 of the Framework Decision 2008/978/JHA, supra note 821. 832 Article 23 (4), ibid.; Declaration of the Federal Republic of Germany, OJ L 350/92 [2008]. 221
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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
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esponsible for the formalisation of
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Indeed, already in 1996, organised
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Finally, besides the political and
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particularly those initiatives that
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and drug trafficking, hence giving
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trade. 356 The Court continued by n
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well as the first protocol. 366 The
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crime is a fluid concept, with loos
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means of transport, telecommunicati
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Chapter 3 The evolution of European
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1. Treaty of Amsterdam: expansion a
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positions would be suited to define
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The author noted how it was adopted
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2. The new scope of European Union
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these political declarations, which
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thirty years and epitomises and imp
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phenomenon and of the multifaceted
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within the scope of instruments alr
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Furthermore, the criminalisation of
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interests (in this case the single
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More notably, the most significant
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The Court decided with the Commissi
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Regardless of the Court having plac
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in particular fields, thus solidify
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However, competence to enact legisl
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months) to third-country national v
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derogations); 525 others proposed f
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ecognition of national sentences, p
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2. The features of the new supranat
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criminal matters and, if necessary,
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with a cross border dimension. Ther
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question of ‘why criminal law’,
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e affected by ECL law. 562 This dec
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Chapter 4 Harmonisation of national
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Harmonisation was felt to be necess
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matters. Indeed, the European Union
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This provision portrays a criminal
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“a structured group of three or m
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development is in line with the rea
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economic loss; (e) seizure of aircr
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Framework Decision, which obliged t
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Page 171 and 172: Again, the EU’s provision was bro
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Page 175 and 176: 3.2. A focus on minimum maximum pen
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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
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Page 187 and 188: development of the single market -
Page 189 and 190: “(… )involves the recognition o
Page 191 and 192: These changes in extradition across
Page 193 and 194: arguments against extradition of na
Page 195 and 196: To be sure, concerns with fundament
Page 197 and 198: text of the preamble does not amoun
Page 199 and 200: States should not have to use their
Page 201 and 202: e partly explained by the fact that
Page 203 and 204: “Confidence in the application of
Page 205 and 206: 2007, Polish authorities requested
Page 207 and 208: With these judgements, the Court st
Page 209 and 210: does not deem the acts in question
Page 211 and 212: discretion in Title VI TEU(A), one
Page 213 and 214: Such reasoning led the Court to con
Page 215 and 216: was committed by a national abroad
Page 217 and 218: Furthermore, the list of types of o
Page 219: “without any further formality be
Page 223 and 224: “The competent authorities in the
Page 225 and 226: prisoners with the view of ‘facil
Page 227 and 228: The preamble explains this choice b
Page 229 and 230: 3.3.3 Probation and alternative san
Page 231 and 232: prosecuted elsewhere in the EU. Rat
Page 233 and 234: of drugs between two Schengen count
Page 235 and 236: definitely bar further prosecution
Page 237 and 238: Conclusion The introduction and dev
Page 239 and 240: Chapter 6 Conclusion: Towards a Eur
Page 241 and 242: Measures adopted along these narrat
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Page 245 and 246: persons acting together; in the fra
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Page 253 and 254: clear in relation to the EAW. In fa
Page 255 and 256: It is beyond the scope of this thes
Page 257 and 258: Furthermore, Article 6 TEU(L) confe
Page 259 and 260: that may endanger his or her life,
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Page 263 and 264: penal values in the future. Similar
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Page 267 and 268: as how long the individual concerne
Page 269 and 270: 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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