Criminal Law Cooperation Research Articles

Between Aims and Execution: Value Trade-Offs in the Practical Implementation of the European Arrest Warrant?

Abstract The European Union (EU) increasingly develops and implements policies infused with salient and sometimes conflicting values – for instance, in migration and criminal law cooperation. However, policy implementation studies have not frequently considered how such complex value trade-offs may affect practical implementation within Member States. This article therefore quantitatively and temporally examines the practical implementation of an EU flagship criminal law measure: the simplified extradition system known as the European Arrest Warrant (EAW). Using data on EAWs decided upon by the Dutch Amsterdam District Court, we test the impact of value trade-offs by examining whether (newly introduced) safeguards for the protection of requested persons adversely affect system efficiency (measured through case turnover times). The results suggest that the design of legal tests and adjustments made to the EAW system over time through the Court of Justice of the European Union affect the balance between fundamental rights protection and efficiency in the practical implementation of the EAW.

Enhanced flexibility: Special regimes of closer cooperation in core state powers

This article looks at the overarching Treaty architecture on secondary law differentiation and investigates three special regimes of closer cooperation, which are modelled upon, but cannot be entirely reconducted to, the enhanced cooperation procedure of Article 20 TEU. These regimes operate within core state powers and introduce a layer of additional flexibility in some policy-specific areas. They are the Article 136.1 TfEU special procedure for euro-related legislation, the fast-track procedure for enhanced cooperation in criminal law and the permanent structured cooperation in defence policies. The article argues that the web of closer cooperation regimes in secondary law enlarges the remit of differentiation within the Treaties beyond the standard enhanced cooperation and adapts it to core state power policy domains. This increased flexibility expands substantially the likelihood of such differentiation instruments to be used in practice. Moreover, as it extends to the policy fields in which opt-outs are generally established and where differentiation is mostly needed and operated, this accrued flexibility can replace, or at least supplement, differentiation through primary law derogations.

International cooperation in criminal matters as a strategic commitment in the control of organized crime and terrorism

The international dimension characterizes contemporary forms of organized crime (OC) and terrorism. in contrast, in most countries? current criminal justice systems, the principle of sovereignty, based on the exclusive competence of the national state in combating crime, is still dominant in the current criminal justice systems, both on a normative and practical basis level. This contradiction significantly impacts the effectiveness of controlling the mentioned forms of crime. As a solution, the development of existing and normative regulation and practical application of new forms of international criminal law cooperation (ICC) is imposed, which is highlighted as one of the dominant goals in a series of international strategic documents related to the suppression and prevention of modern forms of crime. This especially applies to the strategic documents of the European Union (EU), within which forms of the ICC based on modern principles, such as the principle of ?mutual recognition of court decisions,? have been developed. Therefore, implementing the mentioned forms of the ICC in the criminal legislation of Serbia should be one of the strategic goals of our country joining the EU. As part of this paper, an analysis of the content of relevant EU strategic documents will be carried out, in which the ICC in the control of OC and terrorism is highlighted as one of the strategic goals, and then the corresponding content of domestic strategies, which refer to the same matter, intending to define a proposal for revision valid and introduce relevant contents, related to the ICC, into future domestic strategic documents.

Наказателноправно сътрудничество след Брекзит и парадоксът с резервационните данни на пътниците – по-всеобхватно сътрудничество при по-ниска защита на личните данни?

After Brexit, a certain paradox can be observed in the cooperation between the EU and the UK on passenger name record (PNR) data. While Brexit leads by definition to fewer possibilities for criminal law cooperation between the EU and the UK and to a narrower level of cooperation achieved so far, it seems to have led to an increase in the possibilities for processing PNR data of EU citizens and to lower standards of personal data protection. The question arises as to whether this is compatible with the EU Charter and with the case law of the CJEU.

So close, yet so far: The EU/UK Trade and Cooperation Agreement

The recent EU/UK Trade and Cooperation Agreement is a complex treaty covering a wide range of trade and criminal law cooperation issues. It raises a number of legal issues, for instance as regards its legal effect, legal basis, termination or suspension, and dispute settlement. This article examines the general legal issues relating to the Agreement, discussing in particular its attempts to draw a line under the EU membership of the UK, placing the legal relationship firmly on the basis of international law. It examines how this compares to the Withdrawal Agreement and other EU relationships with non-EU countries, looking in detail in particular at the termination and suspension, dispute settlement, and “level playing field” provisions of the treaty. EU/UK TCA, Trade and Cooperation Agreement, Brexit, Withdrawal Agreement, External relations

A BEHAVIORAL APPROACH TO BILATERAL COOPERATION ON CRIMINAL LAWS: A CASE STUDY ON INDONESIA’S EXTRADITION AND MUTUAL LEGAL ASSISTANCE TREATIES

The effectiveness of bilateral agreements in the context of criminal law enforcement remains highly contested. In the Indonesian context, such bilateral cooperation classifies two modalities of indirect law enforcement systems, namely, extradition and mutual legal assistance (MLA) in criminal matters. This article attempts to explain these modalities through a behavioral and rational approach by taking Indonesia’s MLA treaty with Switzerland and its extradition treaty with the Russian Federation as a case study. From this approach, we argue that the state’s decision to cooperate implies the adoption of control and consensus models. However, these two models were induced by political preferences rather than the sole reliance on the maxim aut dedere aut judicare in criminal laws. At the domestic level, the attitudes of penal entrepreneurship and institutional arrangement showcase the multifaceted state’s rationality in deciding a treaty design in criminal law cooperation.

Міжнародне співробітництво у кримінальному провадженні

У статті розглянуто поняття і сутність міжнарод-ного співробітництва в кримінальному провадженні. Висвітлено стан дослідження проблеми міжнародного співробітництва в кримінальному провадженні. Проа-налізовано основні нормативно-правові акти, що регу-люють сферу міжнародного співробітництва в кримі-нальному провадженні, а також визначають порядок та зміст такого співробітництва. Стаття присвячена визначенню поняття міжнародного співробітництва, місця міжнародного співробітництва в кримінально-му процесуальному праві. Проводиться аналіз деяких форм міжнародної правової допомоги, передбачених Кримінальним процесуальним кодексом України, ін-ших нормативно-правових актів. У статті проаналізовано підходи до визначення по-няття та змісту міжнародного співробітництва в кримі-нальному провадженні. Здійснено аналіз зіставлення міжнародного права та міжнародного співробітництва в кримінальному провадженні. Розкрито особливості міжнародного співробітництва на рівні різних країн та співтовариств.Висвітлені особливості інституту міжнародної пра-вової допомоги під час кримінального провадження, процесу видачі осіб, які вчинили кримінальне право-порушення, перейняття кримінального провадження. Зазначено правове підґрунтя регулювання міжнарод-ного співробітництва в кримінальному провадженні. Наведений аналіз деяких положень Кримінального процесуального кодексу України, Інструкції про поря-док здійснення міжнародного співробітництва з питань взаємної правової допомоги, видачі правопорушників (екстрадиції), передачі (прийняття) засуджених осіб, виконання вироків та інших питань міжнародного судового співробітництва в кримінальному проваджен-ні під час судового провадження з нормами відповідних міжнародно-правових актів, що регулюють міжнарод-не співробітництво в кримінальному провадженні. Пропонуються шляхи вирішення проблемних питань, пов’язаних із міжнародним співробітництвом у кримі-нальному провадженні.

The Court of Justice of the European Union’s Mutual Trust Journey in EU Criminal Law: From a Presumption to (Room for) Rebuttal

AbstractMore than any other EU institution, the Court of Justice of the European Union has upheld the presumption of mutual trust in EU criminal law cooperation. Surprisingly though, despite mutual trust’s centrality in the Court’s jurisprudence, it has long not qualified nor properly elaborated the notion of trust, but rather held on to its presumed existence based on a high level of fundamental rights protection throughout the Union. This article will assess the important role of the Court in establishing, upholding and ultimately qualifying the trust presumption in the EU criminal justice context. Along the lines of a number of key cases, the narrative of a strong defence of (the presumption of) mutual trust appears, but also of an evolution toward more room for rebuttal in recent cases. This signals the increased weight given to fundamental rights protection in the EU’s Area of Freedom, Security and Justice.

Rights and Devolution after Brexit

This report records the second roundtable meeting of the Brexit and Rights Engagement Network (BREN) that took place on Wednesday 26th of September 2018 at the School of Law of Queen’s University Belfast. Attendees at the roundtable included network members, fellow academics, representatives of the Northern Ireland Assembly, the European Commission Against Racism and Intolerance, the Northern Ireland Human Rights Commission, law professors and students from the Queen’s University Belfast and Ulster University, and NGOs. There is a tendency to consider rather complex questions of reserved and devolved competences through a centralised lens. This is particularly true for the Northern Irish context where international obligations undertaken in the Good Friday (Belfast) Agreement complicate things further. But even in the Scottish and Welsh contexts, a traditional centralist view of constitutional arrangements is not shared by many scholars in the devolved nations and is no longer appropriate. Indeed, Brexit has focused awareness in the devolved nations that rights protection can and should happen through devolved legislation. The incorporation of the UN Children’s Rights Convention in Wales and the recent inauguration of the Scottish First Minister’s Advisory Group on Human Rights Leadership are examples for this development. The roundtable dealt with these and other issues as elaborated in this report. The report is divided in two thematic Parts: Part I on Brexit and Devolution and Part II on Rights Protection at the Devolved Levels, each followed by a brief discussion with questions and answers. Part I featured presentations on a more general level of devolution with respect to Northern Ireland, Wales, and Scotland. Part II featured presentations focusing on more specific issues of rights and Brexit. In particular, presentations were made with respect to the Good Friday Agreement, the possibility of a devolved bill of rights, the incorporation of international human rights, and criminal law cooperation. This report follows the structure of the roundtable in terms of sequence and titles of the presentations.

The Procedural Criminal Law Cooperation of the EU

This book is the second volume that is based on research conducted within the project “Towards an Area of Freedom, Security and Justice”. The project is financed by Torsten and Ragnar Soderberg’s foundations, which have provided Stockholm University with the Torsten and Ragnar Soderberg chair of legal science. During the years 2011–2014, I was the holder of the chair, which entailed that for four years I was free from the responsibilities connected to my ordinary chair. As stated in the preface to the first volume (The Substantive Criminal Law Competence of the EU), this has made it possible for me to devote time to research, which has (this is, of course, an understatement) substantially contributed to the writing of this book. As in the first volume, parts of the book build upon earlier publications. Chapter 4 (Mutual Recognition qua Legal Principle) was written within the framework of this project, but has been published in Festschrift fur Helmut Fuchs (2014). Chapter 7 (Jeopardy on European Level: What is the Question to which the Answer is the EPPO?) was written during the project period, but has been published in the anthology The European Public Prosecutor’s Office—Legal and Criminal Policy Perspectives (2015). In addition, bits and pieces of the text (especially in Chapter 3) draw on previous publications of mine. I have benefitted greatly from being a member of the European Criminal Policy Initiative and of the Commission’s Expert Group on EU Criminal Policy. Equally important has been that I have had the privilege of being a part of the criminal law group at Stockholm University; I have learned a lot from our discussions (on questions relating to both education and research) and I have—this is not less important—had great fun.

Functions and Aims of Harmonisation after the Lisbon Treaty: A European Perspective

This paper centres on the question of what the functions and aims of harmonization will be after the entry into effect of the Lisbon Treaty, which is as yet uncertain. The answer to that question is indicative of the level that European harmonization of criminal law has now reached. Criminal law is still viewed as an area in which national sovereignty and identity are important themes. The harmonization of criminal law is still at odds with this. At the same time, nobody denies that a purely national approach to criminal law is outmoded and that there are good reasons to enter into and continue close cooperation in criminal law at European level, for example through the approximation of legislation. This entails maintaining the right midpoint: in what areas and to what extent is European unification required for good cooperation and at what levels can Member States give their own substance to criminal law? The position of that right midpoint is not a statistical fact, but particularly the result of an endless political and legal debate. The Lisbon Treaty can be considered as the current state of that debate. Where is the right midpoint when it comes to the willingness and possibilities to harmonize the criminal law of the Member States?

Book Review: European Police and Criminal Law Co-operation, edited by Maria Bergström and Anna Jonsson Cornell. (Oxford: Hart Publishing, 2014)

Book Review: <i>European Police and Criminal Law Co-operation</i>, edited by Maria Bergström and Anna Jonsson Cornell. (Oxford: Hart Publishing, 2014)

Book Review: European police and criminal law co-operation (Swedish Studies in European Law)

Book Review: European police and criminal law co-operation (Swedish Studies in European Law)

Transatlantic Cooperation in Criminal Law

EU criminal law is one of the fastest evolving, but also challenging, policy areas and fields of law. This Handbook provides a comprehensive and advanced analysis of EU criminal law as a structurally and constitutionally unique policy area and field of research. With contributions from leading experts, focusing on their respective fields of research, the book is preoccupied with defining cross-border or ‘Euro-crimes’, while allowing Member States to sanction criminal behaviour through mutual cooperation. It contains a web of institutions, agencies and external liaisons, which ensure the protection of EU citizens from serious crime, while protecting the fundamental rights of suspects and criminals. Students and scholars of EU criminal law will benefit from the comprehensive research present in this Handbook. National and EU policy-makers, as well as judges, defence lawyers and human rights lawyers will find the analysis of current legal action, combined with proposed solutions, useful to their work.

Effectiveness in EU Criminal Law and its Effects on the General Part of Criminal Law

EU criminal law has traditionally focused on more effective criminal law cooperation and approximation of substantive criminal law. The general doctrines of criminal law have pretty much remained intact, when it comes to approximation of substantive criminal law. Principle of effectiveness in EU law, however, has a crucial position also in EU criminal law. This has meant that the scope of EU criminal law has been expanding and the scope is today also reaching general doctrines. While it can be seen that general doctrines constitute the identity of a branch of law, this development may entail the embryo of the new kind of EU criminal law that is more supranational. This development is analysed in the article with critical insights.

Denmark and the European Area of Freedom, Security and Justice: A Scandinavian Arrangement

This short opinion paper examines Denmark's complicated relationship to the European policy Area of Freedom, Security and Justice (AFSJ). The first section looks at the AFSJ, what it is and why it could potentially be transformed from an ugly duckling to a swan. This part of the paper starts from the presumption that the AFSJ is currently going through a needed transformation in the direction of increased legitimacy in terms of extended jurisdiction of the Court of Justice and extended competences to legislate on judicial safeguards. So while still being an area characterised by its work-in-progress nature the institutional framework is slowly improving. Thereafter the paper turns to the rules governing EU differentiation by assessing the flexibility mechanisms by firstly looking at the meaning of the notion of flexibility as such. And secondly it aims to discuss what protocol nr 22 means for Denmark and the rest of the EU and to what extent it differs from the UK and Irish opt outs. Finally, the reflection piece briefly looks at the key features of Nordic criminal law cooperation and its interrelationship with the AFSJ sphere.

EU Law in Criminal Law Practice * by Duncan Atkinson (ed)

As criminal law cooperation is becoming an increasingly specialized and technical branch of EU law, this book on the implications of EU criminal law in UK legal practice is a welcome guide for those who want to understand the multifaceted framework of EU criminal law. This book is structured like a handbook; it is easily accessible and has a very impressive line-up of contributors from leading UK Chambers. In short, this is an introductory guide to EU law while offering in-depth analysis of criminal law issues and cross-border cooperation. The book is centred on the, fairly complicated, relationship between the UK and the rest of Europe with regard to the operation of criminal law cooperation. Specifically, it is focused on the impact of EU law and its effect on the national UK criminal law system. The book is divided into three parts, with Part I putting EU criminal law in context while Part II focuses on the pre-trial and Part III looks at what happens after the arrest.

Fraud on the European Union Emissions Trading Scheme: Effects, Vulnerabilities and Regulatory Reform

As the European Union Emissions Trading Scheme (EU ETS) has grown in size and value, it has become an increasingly attractive playground for fraudsters. The past two years have seen value-added-tax (VAT) fraud and emissions allowance thefts emerge as major threats to the EU ETS market. This study explores the effects that these forms of fraud have had on parts of the EU carbon market; uncovers vulnerabilities in the regulation of the registries (the ``banks'' of accounts in which emissions allowances are kept and from which they are traded) and the oversight of the EU ETS market; and analyses the adequacy and wider implications of the regulatory reforms recently proposed by the European Commission. A series of semi-structured interviews conducted for this study exposes a significant amount of discomfort amongst stakeholders regarding the proposed reforms to the regulation of the registries system, which is felt could still leave the system vulnerable to fraud and its effects. The potential extension of the EU financial markets oversight regulations has also led to fear that the future regulatory framework may be disproportionately burdensome for some market participants, potentially compromising the cost-efficiency of this emissions abatement tool. Moreover, the paper highlights the difficulties involved in the investigation and prosecution of fraud in the carbon markets and assesses the extent to which recent developments in EU criminal law, in particular since the ratification of the Lisbon Treaty in 2009, hold the potential to overcome some of the existing barriers to the effective criminal law cooperation between the Member States.

The Integrity of European Criminal Law Cooperation: The Nation State, the Individual, and the Area of Freedom, Security, and Justice

It is universally true that criminal law is an area closely connected to the very core of the nation state: as well as the governing of morals and dangerous conduct, it concerns the right to punish. In other words, this is a field closely connected with the values of the nation state. Therefore, ever since the crafting of the Maastricht Treaty, the Member States have tried to keep criminal law outside the supranational arena. Such a wish was confirmed by the Amsterdam Treaty, which means that the area of criminal law and justice at the EU level has traditionally been dealt with through the notion of third pillar cooperation. Within this predominantly intergovernmentally influenced sphere, nation state sensitivity in matters of criminal law has been intended to be preserved by the adoption of the internal market concept of mutual recognition. Nevertheless, the adoption of mutual recognition within the third pillar obscures the true challenges: it is the absence of adequate safeguards for the individual and a lack of trust that prompt the concern that mutual recognition is simply not a stable or adequate model for EU criminal law cooperation.

Future developments in judicial cooperation in criminal matters

This paper analyses recent and future developments in judicial cooperation in criminal matters through the prism of the Report of the Justice Future Group. This Report was presented in July 2008 and is the basis for discussion for the new multi-annual programme and its visions for the Area of Freedom Security and Justice for the years 2010–2014. The article inter alia underlines the importance that mutual recognition and mutual trust in Europe is supported by laws that justify such trust and the need to provide common minimum standards to protect the rights of citizens when subjected to a criminal investigation. When doing so there is a need to take into account the difference in the existing protection in criminal procedure in member states in civil and common law countries. The article also analyses some recent initiatives in the field of judicial cooperation in criminal law, such as the EEW and E-justice and provides several examples of potential future measures that could be taken in the sphere of criminal law.