Framework Decision Research Articles

Onward Transfer under the European Arrest Warrant: Is the EU Moving towards the Free Movement of Prisoners?

Neither the European Arrest Warrant Framework Decision (EAW FD) nor its predecessors provide clear rules on which authorities retain control over the onward transfer of surrendered suspects. In the West judgment, the Court of Justice resolved this question by limiting the originating state's powers of control in successive surrender proceedings. This article examines onward transfer rules in the EAW FD and preceding European instruments. It considers the ruling in West and its implications for the EU system of surrender. A new right not to be transferred appears to be emerging as a general principle of EU law. If accepted as a general principle, the right not to be transferred will provide genuine added value beyond existing human rights instruments and defence rights legislation.

Criminalisation of genocide denial and freedom of expression

With the entry into force of the EU Framework Decision on Racism and Xenophobia and the attempts of some states to adopt laws prohibiting genocide denial generally as opposed to the previously followed Holocaust denial model, it became increasingly important to assess the compatibility of criminalisation of the Armenian genocide denial with freedom of expression under Article 10 of the European Convention on Human Rights. The legal compatibility analysis employed suggests that criminalisation of at least some forms of the Armenian genocide denial is compatible with the conventional right to freedom of expression.

Accreditation of a forensic genetics laboratory in Italy

Although in Italy DNA analysis is used since the beginnings, the introduction of a specific legislation had a very important impact for the quality of the results. Only authorized laboratories can now implement the database with genetic profiles; these labs have to follow ISO/IEC standard and according to the Council Framework Decision 2009/905/JHA of 30 November 2009 and the Recommendation 7 of ENFSI this standard is the ISO17025/2005 accreditation. Since December 22th 2009, ACCREDIA is the only appointed Italian Accreditation authority can issue the accreditation certificate. There is no rule to define the ISO test method for the study of DNA polymorphisms in forensics, thus each laboratory should build their own analytical system, reliable and reproducible, through its own internal validation. Here, we focus on some points of the accreditation process developed in our laboratory concerning internal validation protocol.

Blocking and Removing Illegal Child Sexual Content: Analysis from a Technical and Legal Perspective

AbstractIn 2011, the Directive of the European Parliament and of the Council on Combating the Sexual Abuse, Sexual Exploitation of Children and Child Pornography was adopted, repealing and updating the 2004 Framework Decision on this topic. The much debated Article 25 of this proposal requires Member States to ensure the prompt removal of child pornography websites hosted in their territory and to endeavor to obtain the removal of such websites hosted outside their territory. It also leaves the option for Member States, subject to several safeguards, to block access to such websites to users within their territory. Both these policy choices are highly controversial and much debated, both at the level of the European Union and within Member States. This article analyzes both mechanisms, describing them from a technical as well as a legal point of view, in order to provide more clarity as to the advantages and drawbacks of these policy options.

INTERNATIONAL REGULATION OF INFORMATION SECURITY AND RUSSIA'S NATIONAL INTERESTS

In 2011 cyberspace obtained recognition at the highest level—first and foremost, in terms of its importance for international security. This is evidenced by several events and processes which may l...

Data processing by police and criminal justice authorities in Europe – The influence of the Commission's draft on the national police laws and laws of criminal procedure

The proposal for a fundamental reform of the European data protection law, published by the EU Commission on 25 January 2012 is composed of two elements. Apart from a General Data Protection Regulation, the Commission proposes a second regulatory instrument, namely a Directive with regard to data processing by police and criminal justice authorities that shall supersede the Council Framework Decision 2008/977/JHA. This paper seeks to analyse the draft Directive in the context of the entire reform approach and scrutinizes a number of specific issues in regard to the scope, the requirements of data processing, notification duties and data transfer to third countries.

The Implementation of EAW in the Member States Italian Report

The Authors analyse the implementation in the Italian legal system of the EU Framework Decision of 13th June 2002 (2002/584/JHA), that repealed the extradition system between EU-Member States and introduced a new institution, the European Arrest Warrant, with the aim to facilitate and fasten the surrender of individuals accused of or convicted for a criminal offence. The paper, conceived in the framework of the European Arrest Warrant Project, an international research project coordinated by the T.M.C. ASSER INSTITUUT of the Hague and financed by EU Commission, first explores the impact of the new institution on the fundamental principles of Italian criminal law and procedure as they are laid down in the Constitution, with special reference to the fundamental rights of individuals. Moreover, the Authors focus on the different rules disciplining the procedure to be followed by Italian judicial authorities in order to issue an arrest warrant and in order to give execution to an arrest warrant issued by the judicial authorities of another EU Member State.

Implementing Action against Trafficking of Human Beings under the TFEU: A Preliminary Analysis

This article examines the extent to which the European Union and its Member States have been able to implement so-called 3P obligations (prosecution, protection and prevention) in relation to trafficking of human beings under the Treaty on the Functioning of the European Union (TFEU), with particular reference to the new EU Directive adopted in 2011. A detailed analysis of relevant provisions will be presented in comparison with its predecessor, the Framework Decision on Human Trafficking 2002, adopted under the TEU. The main conclusion reached is that, although a number of improvements have been made to fulfil 3P obligations, a wide margin of discretion, the principle of State sovereignty as well as other issues such as enlargement and restrictive immigration policies might prevent the EU and its Member States from advancing effective action against this crime.

The Criminal Sanctions against the Illicit Proceeds of Criminal Organisations

The most recent tendency to place confiscation at the forefront of the fight against organised crime emerges from several important supranational legal instruments (for example, the 1990 Strasbourg Convention, Council Framework Decisions 2005/212/JHA and 2006/783/JHA, and the proposal for a Directive of the European Parliament and of the Council in 2012). Through a comparative survey of current legal systems it is possible to identify four models of confiscation: the criminal penalty; confiscation based on the presumption of the illegal destination of the assets; confiscation of the suspected illicit proceeds, based on the assumption of the source of the proceeds, and the actio in rem. These legislative forms of confiscation are criticised at the national level, particularly as regards their compatibility with the presumption of innocence, with the principle of proportionality and with the protection of property rights. In some judgments, in fact, the ECtHR has evaluated whether some forms of extended confiscation based on rebuttable presumptions are compatible with the guarantee of article 6 (presumption of innocence and fair trial) or article 7 (nullum crimen, nulla oena sine lege and the prohibition of retroactive criminalisation) of the Convention, or with article 1 of its First Protocol (right to property). In conclusion, the author presents some proposals to interpret the new types of extended confiscation in order to find a good balance between the exigencies of efficiency in the fight against criminal organisations and the protection of citizens' safeguards.

Gearing up the Fight against Cybercrime in the European Union: A New Set of Rules and the Establishment of the European Cybercrime Centre (Ec3)

In the never-ending cat-and-mouse game between the law and the (r)evolution of technologies there always seems to be new mice around. Botnet attacks, phishing, social networks, Voice over Internet Protocols (VoIPs) and geo-locative software are posing new menaces that were unknown, or largely underestimated, only few years ago. Although technology neutral, the legislation should, to the extent possible, respond to these constantly changing trends and threats. This article focuses on the European Union's new approach to fight cybercrime giving a preliminary assessment of the new proposal for a Directive on attacks against information systems, intended to replace the 2005 Framework Decision. The article also explores the establishment of the European Cybercrime Centre (EC3) by 2013 and its key features.

A Needed Balance Between Security, Liberty and Justice. Positive Signals Arrive From the Field of Victims' Rights

Both authors and NGOs have levelled harsh criticism at developments within the Area of Freedom, Security and Justice. The European legislator is accused of being too keen on the repressive aspect, and too oblivious to respect for civil liberties. As a matter of fact, there are a certain amount of instruments which exist that are aimed at preventing crime while a very limited number are focussed on protecting the rights of the individuals. The purpose of this paper will be to assess the quality of the legislation intended to enhance the protection of individuals. The selected field of analysis will be victims' rights, chosen for its strategic role both in building an image of Europe in the international arena, and in relation to the construction of Europe itself, given the important connection with freedom of movement. This paper will demonstrate how the Framework Decision on the standing of victims in criminal proceedings sees the victim more as a crucial tool for law enforcement, than as an individual whose interests needs to be protected. Member States are, in fact, given strong obligations as to the right of participation and to information, while some gaps can be found with respect to the right of protection, the right to reparation, and to receive support. This imbalance is accentuated with respect to cross-border victims. One could then conclude that even in respect of the instruments aimed at enhancing the protection of individuals, some evidence of a repressive aim can be observed. Fortunately, the recent Commission proposal seems to be headed in a different direction. Under the proposal, protection rights would be boosted, and stronger obligations would exist for national legislators as to the creation of support services and the training of professionals. If the spirit of the legislative text is maintained throughout negotiations and in the final texts, and the new institutional features of Lisbon, involving the Parliament in the legislative procedure in former third pillar matters certainly lead one to think so, then this will undoubtedly contribute to correcting the existing imbalance between security and liberty.

A definition that does not work: The impact of the EU Framework Decision on the fight against organized crime

This article analyses the impact of the 2008 Framework Decision on the Fight against Organized Crime (part of the Stockholm Programme) on the national legislations of the Member States. While this measure has been criticized by academics and policy makers in the last years, the Council will soon be called to evaluate it on the basis of a report by the Commission. On the basis of a comparative analysis of the relevant provisions in all the Member States, the article demonstrates the Framework Decision did not have any impact on national legislations and has not increased the level of harmonization among the Member States, with consequences on mutual trust and international cooperation in criminal matters. The findings suggest that the EU should reconsider its policy in the field of organized crime legislation.

Legalitás és az opportunitás kérdésének dilemmája a pótmagánvád tükrében

The study is focusing on the principles of legality and opportunity regarding the so called substitute private prosecution and sets them against each other. In the study it is revealed that in case analyzing the growing importance of opportunity, under the Hungarian criminal process system – that is based on the principle of legality – there is a logical way to state that the two principles prevail rather together than against each other. The authors take a closer look on the rules of the current criminal process code, arising from the principle of opportunity and suggest a possible solution on the dogmatic problem how these two principles can exist at the same time in the substitute private prosecution.
 Based on rationalism, on the recommendation No. Rec(2000)19 of the Council of Europe and so that no conflicts arise from the provisions foreseen in the Framework Decision No. 2001/220/IB of the European Council, the study makes a suggestion to allow the victim to act as a substitute private prosecutor in case of authorities partially deny the investigation. However the authors’ suggestion is just the opposite (i.e. restriction) in case of authorities partially deny indictment. According to their suggestion the above mentioned allowance shall based always on reasonable and respectable circumtances and it shall be declared by the victim why the process at the court has to take place even if authorities were not of this opinion.
 When the authors are analyzing the problems caused by the principle of opportunity and legality, and when they make suggestions that the rules regarding the substitute private prosecution shall be modified, they try to draw attention on the importance of this process as a significant right of victims regarding access to justice. The authors are on the opinion that the legislator shall pay not just a marginal attention on the problem when the victims are entitled to act as an substitute private prosecutor.

The proposed data protection Regulation replacing Directive 95/46/EC: A sound system for the protection of individuals

The recent release by the European Commission of the first drafts for the amendment of the EU data protection regulatory framework is the culmination of a consulting and preparation process that lasted more than two years. At the same time, it opens up a law-making process that is intended to take at least as much time. The Commission has undertaken the herculean task to amend the whole EU data protection edifice, through the introduction of a General Data Protection Regulation, intended to replace the EU Data Protection Directive 95/46/EC, and a Police and Criminal Justice Data Protection Directive, intended to replace the Framework Decision 2008/977/JHA. This paper shall focus at the replacement of the EU Data Protection Directive by the draft General Data Protection Regulation. Due to the fact that the draft Regulation is a long (and ambitious) text, a selection has been made, with the aim of highlighting its treatment of basic data protection principles and elements, in order to identify merits and shortcomings for the general data protection purposes.

Framework Decision on Combating Terrorism: Two Questions on the Definition of Terrorist Offences

This contribution discusses two questions arising in relation to the definition of terrorist offences in the Framework Decision on combating terrorism. Firstly, the question is considered as to what extent this definition contains a requirement of endangerment that Member States have to include in their national legislation. Secondly, the Framework Decision's significance for the position of activists, demonstrators and strikers will be addressed.

Note on the Reference in Case C-399/11 Melloni

In this article, Alex Tinsley, Strategic Caseworker at Fair Trials International, reviews the current arrangements under which the Court of Justice of the European Union interprets third pillar measures such as the European Arrest Warrant Framework Decision. The article then considers the reference from the Tribunal Constitucional in Case C-399/11 Melloni concerning the provisions of the European Arrest Warrant Framework Decision on extradition for the purposes of serving a sentence based on an ‘in absentia’ conviction. It asks whether, at least in this area, the Charter of Fundamental Rights represents a uniform standard of fundamental rights protection, excluding the application of more extensive protections under national constitutional traditions.

IMPLEMENTACJA DECYZJI RAMOWYCH DOTYCZĄCYCH PRAWA KARNEGO MATERIALNEGO DO POLSKIEGO PORZĄDKU PRAWNEGO – ZAGADNIENIA WYBRANE

The paper is composed of three basic parts. In the introduction are discussed the successive stages of cooperation of the states of the European Union within the III pillar of the EU – from its inception (the European Union Treaty, signed in Maastricht on the 7th of February 1992) to the Treaty of Lisbon (signed on the 13th of December 2007). In the second part is described the most significant legal instrument of the III pillar, implementing the harmonisation of the criminal law of the member states, that is the framework decisions. In the third part are presented examples of the implementation of chosen framework decisions in Polish law – the Framework Decision of the Council of 2002/475/JHA of 13th of June 2002 on combating terrorism and the Framework Decision of the Council 2002/629/JHA of the 19th of July 2002 on combating trafficking in human beings. Certainly the choice is not casual. The author endeavours to present two extreme models of implementing of framework decisions: a method of implementation consisting in transfer of legal rules, with the aim of inserting created norms into the Polish legal order and the contrary one of rewriting the content of the implemented framework decision without any reflection.

The European arrest warrant

The paper portrays the new European Union extradition system, established by the Framework Decision on the European arrest warrant and the surrender procedures between Member States of 2002. In the introductory remarks, the author explains the formation and development of the traditional extradition procedure, depicts relevant legal sources, and points to its flaws, which boil down to tardiness and inefficiency. The main author's standpoint is that the European arrest warrant is based on mutual trust in the member-states' legal systems, and that it depoliticizes the extradition procedure by transforming interstate cooperation into cooperation between member - states' law enforcement authorities. On these grounds, the author determines the nature of this new legal institute, that introduces radical changes into the paradigm of the classical extradition, and explains its main features as well as the scope of application. Further on, the paper explores the conditions for issuance of the European arrest warrant, which are proscribed by negative formulations - as absolute and relative obstacles for extradition. Finally, the author explains the standardized formal elements of the European arrest warrant content, which should make its application easier and more expeditious.

Environmental risk management with the use of multi-criteria spatial decision support system DECERNS

Environmental risk-based land management requires implementation of tools for spatial information analysis, problem-oriented models for assessment of risk values, and corresponding methods for decision-making support. A new framework decision evaluation in complex risk network systems (DECERNS) has been developed to address this class of problems. DECERNS is a web-based spatial decision support system (WebSDSS) for multi-criteria analysis of a wide range of spatially-distributed alternatives, including land-use planning and management. It integrates basic and advanced GIS functions with several multi-criteria decision analysis (MCDA) methods and tools. One of the features of the DECERNS WebSDSS is a capability to incorporate various generic and site-specific models for risk analysis and assessment of other decision criteria which are considered within a multi-criteria problem. This paper provides an overview of methods and tools used in DECERNS, emphasising the integration of models into the WebSDSS. Application of DECERNS for a case study on multi-criteria risk management for 137Cs contaminated land resulting from Chernobyl is presented.

The EU Legal Framework on Trafficking in Human Beings: Where to from here – the UK Perspective

The European Union (EU)’s current provisions on the trafficking in human beings (THB) are provided for, inter alia, in Council Framework Decision 2002/629/JHA. The Council of Europe have more recent provisions in this area, which are not yet widely in force. The EU has some major proposals for reform of its legal framework in the Stockholm Programme, to include the appointment of an EU Anti-Trafficking Coordinator. In addition, the focus of EU Justice and Home Affairs is shifting to the external relations of the EU under the Stockholm Programme. A critical examination of the EU legal framework in the area of THB from a law enforcement perspective is therefore timely. THB is a highly contentious and complicated area for regulation, with issues such as the support of the victims of trafficking, the particular needs of under-aged trafficked individuals, and the issues of due process when a witness may not be considered to be reliable during court proceedings, complicating operations and prosecutions. In addition the issue of illegal immigration adds a further layer of complication, with the UK maintaining its opt out from the EU’s illegal immigration provisions. This article will, focus on the illegal trafficking of adults against their will, and the consequences of this crime, in particular, for the UK law enforcement authorities.