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

particularly so in the case of the Scandinavian Social Democracies. 978 Indeed, many
Western European democracies, even if coping with changes towards more restrictive
penal laws and practices, have managed to sustain relatively moderate criminal justice
systems in particular if compared to other Western democracies such as the US or other
regimes around the world. 979 These differences in national penological approaches and
trends suggests that an increase in formal criminalisation in consequence of
implementation of EU harmonisation measures and an enhanced capacity to investigate,
prosecute and secure punishment as a result of the operability of the mutual recognition
principle will not always and not necessarily translate into a harsher penality at national
level.
4. The emergence and development of more moderate nuances in ECL
4.1. A more central role for fundamental rights
The moderation of the ECL’s punitive tone in recent years is also seen in the significant
improvement of the narrative of protection of fundamental rights in ECL. Indeed,
fundamental rights—and particularly procedural rights in criminal procedure—have
taken a more visible place with the entry into force of the Treaty of Lisbon. First and
foremost, because Article 6(2) TEU(L) holds that the EU should accede to the ECHR. 980
The accession will bring added guarantees, the most obvious one being that EU acts will
be challengeable before the EcHR. Moreover, as voiced by the Commission, accession
will help to develop a common culture of fundamental rights in the EU; it will reinforce
the credibility of the EU’s human rights’ system; it will show that the EU puts its weight
behind the Strasbourg system of fundamental rights; and it will ensure that there is an
harmonious development of CJEU and the EcHR’s case law. 981
978
N. Lacey, The Prisoners’ Dilemma (Cambridge: Cambridge University Press, 2008) 3-54, 55;
see also T. Lappi-Seppala, “Trust, Welfare and Political Culture” , supra note 972, 313-316. In
the English speaking world, where the adoption of more repressive penal policies was strongly
felt, Canada, for example, has also been highlighted as an example of relative moderation
regardless of remaining a considerably punitive system, see, for example, D. Moore and K.
Hannah-Moffat, “The liberal vein: revisiting Canadian penality” in in J. Pratt et al. (eds) The New
Punitiveness (Portland: Willan Publishing, 2005) 85-100.
979 N. Lacey, The Prisoners’ Dilemma, ibid., 26-28; M. Tonry, “Parochialism in U.S. Sentencing
Policy” (1999) 45 Crime and Delinquency 48, 50. Tonry explores how the use of cost-effective
sanctions such as prosecutorial fines, community service orders and day fines have proliferated in
Europe, in contrast with symbolic policies and rhetoric such as ‘three strikes and you’re out’,
‘boot camps’ etc., which have been used extensively in the US, used to some extent in the UK,
but not in other European countries.
980 See also Article 218 TFEU. The Commission began negotiations over accession with the
Council of Europe in July 2010. On November 2012, negotiations were ongoing, see Council of
the European Union, Note from the Presidency on the Stockholm Programme mid-term review,
Document 15921/12, Brussels, 13 November 2012, 6-7.
981 European Commission, Brussels, 17 March 2010, http://ec.europa.eu/commission_2010-
2014/reding/pdf/echr_background.pdf
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