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

communication upon arrest 1012 is under negotiation whilst other measures feature in the
Commission’s working programme for 2012. 1013
These recent developments relating to individual, procedural and fundamental rights
brought about by the TEU(L), the TFEU and the post-Lisbon reforms, considerably
developed what this thesis called “the narrative of fundamental rights in ECL”. To be
sure, albeit significant improvements, some criticisms are still being voiced in relation to
some lacunas that remain in the protection of individual rights in ECL. Rijken, for
example, noted in 2010, that many of the new legislative measures adopted largely
mirror existent procedural rights as developed by the ECHR and, in doing so, do not
provide an adequate response to the specific fundamental rights concerns that have
emerged out of the application of mutual recognition in criminal matters and enhanced
judicial and police cooperation. The author mentions in particular, rights of information
for data subjects, rights of information for house owners of their rights to be present
during searches and of subjects of the reasons for an EEW or EAW as examples of
special rights that ought to be created in response to the enhanced judicial and police
techniques used. 1014 Ever since, rights on information at least in relation to the EAW
have been improved (although as seen the Directive on information rights does not detail
which information exactly should be offered in the Letter of Rights in case of EAWs).
Regardless of any remaining gaps, the general framework is clearly more balanced at a
legislative level than that existing before the Lisbon reforms. As Mitsilegas notes, the
entry into force of the TEU(L) and TFEU has the potential to address concerns over
fundamental rights within the AFSJ. In particular, the author notes that the new
framework brings the position of the individual and the protection of their fundamental
rights to the fore in three ways:
“by strengthening the effects and extending the general reach of general fundamental
rights instruments (in particular by granting binding status to the Charter of
Fundamental Rights and enabling the accession of the European Union to the ECHR) –
the impact of the Charter on the Area of Freedom, Security and Justice has already been
felt in the landmark N.S. ruling; by prioritising the adoption of secondary legislation
related to the protection of fundamental rights (the Treaty of Lisbon includes an express
1012 Proposal for a Directive of the European Parliament and of the Council on the right of access
to a lawyer in criminal proceedings and on the right to communicate upon arrest,
COM(2011)326final, 8 June 2011.
1013 See for an overall picture House of Lords, European Union Committee, The European
Union’s Policy on Criminal Procedure, 30th Report of Session 2010-12, Authority of the House
of Lords, 26 April 2012.
1014 C. Rijken, “Re-Balancing Security and Justice: Protection of Fundamental Rights in Police
and Judicial Cooperation in Criminal Matters” (2010) 47 Common Market Law Review 1490.
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