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

clear in relation to the EAW. In fact, whilst the abolition of the principles of nonextradition
of nationals, dual criminality and refusal to extradite based on human rights
raised concerns throughout the European Union, Member States reacted differently.
Some willingly changed their constitutions and secondary legislation in order to comply
with the Framework Decision. Others nonetheless set extensive conditions as to whether
and how they were to accept the surrender of individuals to other Member States. Many
of these conditions guaranteed additional protection to individuals; others maintained or
introduced dual criminality as grounds for refusal to surrender. 964 This suggests first,
that not all Member States will make an intensive use of tools such as the EAW simply
because they are at their disposal; and, second that many national legal orders have de
facto introduced additional safeguards. Hence, the punitive and prosecutorial bias of
some of the mutual recognition measures will not always translate into enhanced
practices of prosecution and punishment (although, as noted in the previous section, this
autonomy will be more constricted due to the Commission’s possible use of its new
‘policing competencies’ under the Treaty of Lisbon).
Certainly, national responses to ECL will always vary. First, because as just seen ECL
leaves room for this; second, because there is a great diversity of penological approaches
and trends among EU countries. Hence, on the hand, the proliferation of ECL measures
that almost exclusively expand criminalisation and enhance the State’s punitive
apparatus emphasise themes and trends of increasing punishment in national legal orders
across the West. Garland notes how, from the 1970s onwards, ‘penal welfarism’ which
combined liberal legal ideals of due process and proportional punishment with a belief
in rehabilitation, welfare and criminological expertise began to favour of a rebirth of
retributive and punitive approaches to crime control. 965 In an historical, sociological and
penological analysis, Garland maps out the history of these changes which have, in the
author’s opinion, led to the emergence of a ‘culture of control’ involving a combination
of repressive and managerial criminal justice strategies (mostly in the USA and the UK).
These changes were reflected in certain features of crime control structures, such as,
among others, the massive expansion of criminal justice systems in terms of caseload,
employment, expenditure and use of custodial sentences to the detriment of alternative
sentences such as fines and community supervision; 966 the highlighting of the figure of
the victim which epitomised the move from a primary concern with the causes of crime
964
See national constitutional and supreme courts reactions to the EAW and national
implementation of the Framework Decision, Chapter 5, sections 2.1 and 2.1.1.
965 D. Garland, The Culture of Control, supra note 42, 27-51. For a critical overview of the new
trends, see also J. Faria Costa, “A criminalidade em um mundo globalizado: ou plaidoyer por um
direito penal não-securitário” (2005) 135 Revista de Legislação e Jurisprudência 26.
966
D. Garland, The Culture of Control, supra note 42, 168.
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