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

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delinked the national from its State of nationality – and caused so much struggle for doing so. 865 Thus the Framework Decision has the potential to become a tool for the regulation of prison costs and prison population. Indirectly it can become a tool which permits the attainment of migration policy goals such as the normalisation and compensation of high flux of migrants in some countries. 866 Mitsilegas notes on this matter that “Although the proclaimed aim of the Framework Decision is to facilitate the social rehabilitation of the sentenced person, its real aim appears to be to alleviate the burden of prisons in EU Member States…” 867 The lack of need for consent on the part of the executing State also suggests this possibility. Furthermore, as seen in the previous section, the proportion of foreigners (both EU and non-EU nationals) in prisons in many EU countries is a thorny issue that Member States face. In fact, the risk that the Framework Decision might be used to aliviate overcrowding in one Member State whilst exacerbating overcrowding in another was noted by the Commission in its Green Paper on the application of EU criminal justice legislation in the field of detention. 868 This was also a concern that some countries have voiced very clearly. Poland, for example, being a country of origin of many immigrants in Western Europe, asked for a derogation from the Framework Decision in order to be able to cope with the possible impact of transfer of Polish prisoners to Poland. Intent 11 of the preamble holds, “Poland needs more time than the other Member States to face the practical and material consequences of transfer of Polish citizens convicted in other Member States, especially in the light of an increased mobility of Polish citizens within the Union. For that reason, a temporary derogation of limited scope for a maximum period of five years should be foreseen.” 865 M. Platcha, ibid., 359. 866 See G. Vermeulen, “Mutual Instrumentalization of Criminal and Migration Law from an EU Perspective”(2007) 9 European Journal of Migration and Law 357. 867 V. Mitsilegas, “The third wave of the third pillar” (2009) 32 European Law Review 523, 542. 868 European Commission, Green Paper strenghtening mutual trust in the European judicial area – A Green Paper on the application of EU criminal justice legislation in the field of detention, COM(2011)327 final, Brussels, 14 June 2011, 6. 228
3.3.3 Probation and alternative sanctions Finally, this group of framework decisions on measures involving deprivation of liberty is complemented by a Framework Decision on probation and alternative sanctions, 869 whose aims are more eclectic than the previous sister measures: “This Framework Decision aims at facilitating the rehabilitation of sentenced persons, improving the protection of victims and of the general public, and facilitating the application of suitable probation measures and alternative sanctions, in case of offenders who do not live in the State of conviction.” 870 With this in mind the Framework Decision sets the rules for the recognition, enforcement and supervision of probation or alternative sanctions by a State other than the sentencing one. The Framework Decision introduces a clear moderation of the thus far problematic aspects of mutual recognition. This is so first, as it introduces the need for the consent both of the sentenced person and of the executing State. This is perhaps not surprising giving the considerable means and effort the executing State has to use to execute and supervise probation or an alternative sanction. Second, dual criminality can be applied even for the serious offences 871 whilst the remaining grounds for refusal remain generally the same. 872 Furthermore, the executing State will be responsible for all the subsequent decisions relating to “…a suspended sentence, conditional release, conditional sentence and alternative sanction, in particular in case of non-compliance with a probation measure or alternative sanction or if the sentenced persons commits a new criminal offence.” 873 The Framework Decision on probation appears as the first mutual recognition instrument where the individual and the executing State are afforded room to manoeuvre. This is so, on the one hand, as the individual’s consent is necessary; on the 869 Council Framework Decision 2008/947/JHA, supra note 421. 870 Article 1, ibid.. 871 Article 10, ibid.. 872 Article 11, ibid.. 873 Article 14, ibid.. 229
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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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possession, among others. 630 A stu
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Again, the EU’s provision was bro
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liability is a sensitive issue whic
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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 and 220: “without any further formality be
Page 221 and 222: An EEW can only be issued with the
Page 223 and 224: “The competent authorities in the
Page 225 and 226: prisoners with the view of ‘facil
Page 227: The preamble explains this choice b
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
Page 247 and 248: policies appeared as the main crite
Page 249 and 250: preceding any legislative proposal,
Page 251 and 252: suggests that mutual recognition wi
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
Page 265 and 266: Member State of execution, irrespec
Page 267 and 268: as how long the individual concerne
Page 269 and 270: 6. A renewed challenge for coherenc
Page 271 and 272: Bibliography Books and articles Aba
Page 273 and 274: 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
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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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