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

legal orders that punish more severely to the detriment of more lenient ones. The
punitive emphasis of the principle of mutual recognition has been highlighted through
the introduction of the European Arrest Warrant (EAW) which aims at facilitating
‘extradition’ between Member States by introducing an almost automatic procedure and
removing traditional State guarantees against extradition of individuals - such as the
principle of non extradition of nationals, the principle of dual criminality and the refusal
to extradite based on human rights’ grounds. 88 Indeed, the high number of the EAW
issued suggests this instrument streamlined cooperation with a punitive emphasis across
the European Union. More specifically, the great variation in how different States use
the EAW brings to light how the principle suits different legal orders differently. Hence,
whilst some Member States, such as Poland for example, have been enthusiastic issuers
of EAWs, other States have used the new tool with considerably more restraint.
Chapter 5 will further illustrate how ECL was, for the first time, met with resistance
from certain domestic legal orders that were reluctant to accept the different dimensions
of the punitive bias of mutual recognition and of the EAW. Some Member States thus
introduced qualifications as to whether or not and how they would allow the surrender of
individuals to other Member States. These changes were primarily in the form of
additional safeguards for defendants or resistance to the priority given to more severe
legal orders. 89 In fact, it will be shown how these national reactions led to a subsequent
moderation of mutual recognition also at the EU level. 90 To be sure, mutual recognition
continued to expand in order to secure the recognition and enforcement of financial
penalties, 91 evidence, 92 and imprisonment as well as alternative sanctions. 93 However,
the principle of dual criminality was either partially or fully reintroduced in some of
these measures and the impact of punishment on the individual began to be taken into
account, mainly by the CJEU adjudication on the principle of ne bis in idem. 94 The
protection of fundamental rights mainly via the endorsement of procedural rights has
also been highlighted ever since the entry into force of the Treaty of Lisbon. Hence,
these most recent developments suggest that a better balance between punitiveness and
moderation is finding place in ECL.
88 Chapter 5, section 2.
89 Chapter 5, section 2.1, 2.1.1.
90 Chapter 5, section 3.
91 Chapter 5, section 3.1.
92 Chapter 5, section 3.2.
93 Chapter 5, section 3.3.
94 Chapter 5, section 3 and 4.
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