Framework Decision Research Articles

Implementation of UN and EU recommendations on criminalization of organized crimes

Article presents comparative analysis of features and characteristics of organized criminal associations recommended for further criminalization by provisions of Palermo Convention and Framework Decision 2008/841/JHA. Certain peculiarities of the abovementioned provisions implementation in more than 50 states (Asia, America and Europe) have been outlined. We expressed and proved the hypothesis stating that criminalization of actions performed by the members of organized groups and criminal organizations by different states separately is partly explained with consideration of different international legal acts by national legislators: Palermo Convention and Framework Decision 2008/841/JHA. On the basis of analysis of key global models used to criminalize the socially dangerous actions with aim to counteract the organized crimes (collusion, participation, entrepreneurship, marking/registration) we justified the following opinion: 1) within the limits of criminal associations countering collusion and participation models are considered to be the most efficient; 2) use of entrepreneurship model allows to justify the need for establishment of responsibility for legal entities involved in criminal associations functioning or utilization of relevant criminal measures; 3) registration/marking model may be efficient for counteracting the extended terrorist organizations.

Briefly Noted

On October 15, 2019, a Grand Chamber of the Court of Justice of the European Union (CJEU) issued its judgment in case C-128/18 Dumitru-Tudor Dorobantu, a case concerning the interpretation of Article 4 of the Charter of Fundamental Rights of the European Union and Council Framework Decision 2002/584/JHA of June 13, 2002, on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of February 26, 2009. Article 4 of the Charter provides for the prohibition of torture and inhuman or degrading treatment or punishment and, under Article. Article 4 of the Charter is to have the same meaning and scope as Article 3 of the European Convention on Human Rights. The case involved the issuance of an arrest warrant for Mr. Dorobantu by a Romanian judicial authority to German authorities, as Mr. Dorobantu resided in Hamburg. Prior to executing the warrant, the German court referred a number of questions to the CJEU for a preliminary ruling concerning material conditions of detention and how to assess whether such conditions comply with EU fundamental rights guarantees. The CJEU ruled effectively that requested judicial authorities must suspend execution of an arrest warrant until they have been provided with sufficient evidence to demonstrate whether or not the fundamental rights of the person in question are in actual danger of being infringed.

A legitimacy-based approach to EU criminal law: Maybe we are getting there, after all

European Union (EU) law is known for its strong emphasis on effectivity and more generally for its instrumental character. This is not foreign even to European criminal law, a feature which creates some tension between the EU criminal law and criminal law in the national setting. EU Framework Decisions and Directives often require the Member States to criminalize certain forms of conduct with sanctions that are ‘Effective, Dissuasive and Proportionate’. In this article, I try to show that it would be timely to look at EU criminal law from an alternative point of view, as a more mature law. I call this a legitimacy-based approach. Such a reading would ease some of these tensions. It would also be helpful in developing a criminal policy for the EU, a policy which would be realistic and pragmatic. And it would be easier to look at EU criminal law from the point of view of justice. In order to get there, we need to see where the (current) narrow deterrence argument gets is wrong or one-sided. Some social theory is needed in order to make the point.

Ответственность за оправдание геноцида, преступления против человечества, преступления против мира и военного преступления в уголовном законе Латвийской Республики

ccording to the Section 1 of the Council of European Union Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law, each Member State shall take the measures necessary to ensure that the following intentional conduct is punishable: publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes. Section 74.1 ―Acquittal of Genocide, Crime against Humanity‖ of the Criminal Law provides for liability in the public glorification of genocide, crime against humanity, crime against peace or war crime or glorification, denial, acquittal or gross trivialisation of committed genocide, crime against humanity, crime against peace or war crime, including genocide, crime against humanity, crime against peace or war crime committed by the U.S.S.R. or Nazi Germany against the Republic of Latvia and its inhabitants. The article aims to initiate a debate on potential problems related to the application of the Section 74.1 ―Acquittal of Genocide, Crime against Humanity‖ of the Criminal Law. The author offers his vision of the regulatory framework application problems.

The surrender of prosecuted persons under the EAW procedure: Issues of transposition of EU criminal policy to the national level

This article deals with the transposition of European Union (EU) criminal policy to national justice systems, taking, as an example, the surrender of prosecuted persons under the European Arrest Warrant (EAW) procedure. In particular, attention is focused on the question about the limits of the application of mutual recognition in the event of executing the EAW that is also linked to the increasing role of punishment, as a measure for rehabilitation and reintegration of the offender into society. The author argues that national citizenship should be treated very carefully by judicial authorities in the EU Member States which are deciding on the surrender of the prosecuted person under the EAW procedure. This care should apply whether surrender is for the purposes of criminal prosecution, the execution of custodial sentences or in the case of the transfer of sentenced persons to their State of nationality under Council Framework Decision 2008/909/JHA. With this aim, the first section explains the possible functions of punishment in contemporary penology; the second section is devoted to the Court of Justice of the EU rulings which are crucial for the further developments of EU criminal policy; and the third section refers to the Polish experience in surrendering own nationals for the purposes of prosecution in the EAW issuing Member State.

Criminal Protection of Environment-Organized Crime and Effective Regret

This paper analyzes special criminal offences of environment endangering through national and international legislation. How social aspect is important in criminal law because of prevention of injury, legislator predicted provision of effective regret if person acts as individual perpetrator or as part of criminal organization. That is key reason why paper analyzes effective regret prescribed in Criminal Code of Croatia in Special part (Head protecting environment and Head protecting public order). Mostly, environment will be injured by act of individual, but nowadays, environment is valuable resource that enables to gain large profit and as such is aim of criminal organizations. Legislator punishes mostly stadium of environment endangering, so paper reflects nature of provisions against environment on possibility of effective regret (instrument of stopping injury of legal good (material completion of criminal offence against environment)). Paper analyzes also UN Palermo Convention and EU Framework Decision against organized crime, specially provisions about conspiracy (when exists no criminal organization) and criminal organization and on end their comparison with legislation of Croatia. De lege ferenda is noted that Framework Decision must incriminate conspiracy established for only one criminal offence, and not for only two or more, because one criminal offence can have characteristics of organized crime as well. Paper concludes that it is necessary to predict effective regret by more criminal offences of environment endangering because it represents best way of legal good protection. If person acts as part of criminal organization, it should be sufficient that content of effective regret presents certainly prevention of commission of criminal offence without disclosure of criminal organization because protection of legal good (environment) should have an advantage over punishment of perpetrator.

10 Years after Lisbon – How “Lisbonised” is the Substantive Criminal Law in the EU?

10 years ago, on 1 December 2009, the Treaty of Lisbon entered into force and brought judicial cooperation in criminal matters from the sphere of intergovernmental cooperation fully into the fold of EU law and policies. Almost all former framework decisions in the field of substantive criminal law have now been “Lisbonised,” i.e., recast in the ordinary legislative procedure as legal acts (directives) of the Union in the sense of Art. 288 TFEU. However, in recent years, the enthusiasm of the early years has waned a bit and there seems to be little appetite for bold new legislative projects. Against this backdrop, the present article takes stock of the progress made in the harmonisation of substantive criminal law in the EU and attempts to look into its future.

Mutual Recognition of Judgements in Criminal Matters Involving Deprivation of Liberty in Spain

Council Framework Decision 2008/909/JHA of 27 November 2008 “on the application of the principle of mutual recognition to judgements in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union” was implemented in Spain by the introduction of new rules into the Mutual Recognition Act. Achieving social rehabilitation is the core objective of the Framework Decision. This has also practical consequences for the implementation of this instrument, for example requiring ties on the part of the sentenced person with the executing State. Some of the most controversial procedural issues in Spain are analysed in this article, including the consent of the sentenced person and the grounds for the adaptation of the sentence by the executing State under Spanish law

Az uniós tagállamok ügyészségei által kibocsátott európai elfogatóparancsok végrehajthatósága

The Court of Justice has recently been seized of a series of cases regarding the right to an effective remedy against decisions adopted in the area of EU law as well as the independence of national courts participating in the application of that law. At the same time, a handful of cases have also been referred to the Court with a view to establishing whether the principles of the right to an effective remedy and of independence should also be applied to cases where the public prosecutor’s offices of the member states issue European arrest warrants (EAWs).In this context, on the one hand, doubts have arisen as to whether the public prosecutor’s offices of several member states, with regard to their relations with other public bodies, can be regarded as “judicial authorities” empowered to issue EAWs under the Framework Decision on the European arrest warrant. On the other hand, the question has been raised whether the EAWs issued by the public prosecutor’s offices of certain Member States can be subject to an effective remedy as required by Article 47 of the Charter of Fundamental Rights of the European Union. The cases the Court has so far handled in this area related to the German, Austrian, French, Swedish and Belgian public prosecutor’s offices as well as to the Prosecutor General of Lithuania. The question at issue is not only of theoretical nature but also has an important practical relevance, since, in the light of the Court’s rulings in the aforementioned cases, non-compliance with the principles at issue prevents a EAW from being executed.

How Much Independence is Necessary to Issue a European Arrest Warrant?

The competence for issuing a European Arrest Warrant (EAW) is a hot topic at the moment. It has been the subject of four rulings of the Court of Justice of the European Union (CJEU) alone in 2019. These are preceded by three more rulings on the same subject from 2016. All of these judgments addressed the same core question: was the issuing authority a “judicial authority” and independent enough to issue an EAW pursuant to Art. 6 (1) of the Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (FD-EAW)? If the answer to that question is “no”, the EAW issued by the incompetent authority is not valid. This article analyses the concept of “judicial authority” in the context of the FD-EAW and the legislative change currently discussed in Germany in the light of the requirements established by the CJEU.

European Implementation Assessment 2004-2020 on the European Arrest Warrant

This article provides a summary of an assessment and conclusions on the implementation of the Framework Decision on the European Arrest Warrant (FD EAW) recently published by the European Parliamentary Research Service. It also contains recommendations on how to address the shortcomings identified. It is intended to contribute to the European Parliament’s discussions on this topic, improving understanding of the subject, and ultimately feeding into an implementation report by the European Parliament. The study concluded that the FD EAW has simplified and sped up surrender procedures, including for some high-profile cases of serious crime and terrorism. A number of outstanding challenges relate back to core debates concerning judicial independence, the nature of mutual recognition and its relationship with international and EU law and values, constitutional principles and additional harmonisation measures. Furthermore, there are gaps in effectiveness, efficiency and coherence with other measures and the application of digital tools. The study recommends targeted infringement proceedings, support to judicial authorities and hearing suspects via video-link where appropriate to avoid surrender whilst ensuring the effective exercise of defence rights, as well as a range of measures aimed at achieving humane treatment of prisoners. In the medium term, for reasons of legitimacy, legal certainty and coherence, a review of the FD EAW as part of an EU judicial cooperation code in criminal matters is recommended

The AY Case – Construing EAW ne bis in idem within the Boundaries of the Preliminary Ruling Reference

This article analyses and comments on the opinion of the Advocate General and the ECJ judgment in case C-268/17 (European arrest warrant against AY). Interestingly, the case has remained somewhat unnoticed, the literature on it being scarce. However, it addresses some quite appealing issues. First, the case poses interesting questions on the admissibility of the reference for a preliminary ruling. Here, the Advocate General’s and the Court’s views disagree, which opens a general debate around the preliminary ruling reference mechanism. Second, the case deals with the obligation of the executing authority to decide on each incoming EAW, even if an earlier one relating to the same person and the same facts had already been refused. Third, the ECJ had the opportunity, for the first time, to specify its case law on the provisions reflecting the ne bis in idem principle in the Framework Decision on the European Arrest Warrant (Arts. 3(2) and 4(3)). This article stresses that the ECJ lays down the foundation of a neatly subjective ne bis in idem principle, which primarily refers to the requested person rather than to the offence that was the subject of criminal proceedings

¿Fracaso del reconocimiento mutuo de resoluciones de libertad vigilada en España? Una reflexión de la situación de los condenados extranjeros de nacionalidad comunitaria

En este trabajo se analiza el nivel de aplicación del reconocimiento mutuo de resoluciones de libertad vigilada en España, hasta el momento muy escaso pese a que el número de beneficiarios potenciales de la medida (condenados extranjeros de nacionalidad comunitaria) es significativo. Para valorar las razones de esta falta de aplicación, se estudian, en primer lugar, los objetivos tanto de la Decisión Marco 2008/947/JAI como de la Ley 23/2014. A continuación se muestra como la rehabilitación social de los condenados y la protección de las víctimas y del público en general se ponen en relación crítica con la prevalencia de los procedimientos de expulsión de condenados comunitarios. Estas expulsiones siguen una lógica distinta, pensada en clave exclusivamente nacional. Su prevalencia en España ha convertido en innecesario el reconocimiento mutuo, puesto que buena parte de los condenados que podrían beneficiarse de él son expulsados. Surge así un sistema incoherente y contradictorio que no tiene en cuenta que el fin constitucional de la privación de libertad es la rehabilitación social del condenado.

BRIEF COMMENTS ON THE CONCEPT OF JUDICIAL AUTHORITY JURISDICTION UNDER ARTICLE 6 OF COUNCIL FRAMEWORK DECISION NO. 2002/584/JHA REGARDING THE EUROPEAN ARREST WARRANT

Article 6, paragraph 1 of Framework Decision 2002/584/JHA provides that the issuing judicial authority is the judicial authority of the Member State competent to issue a judicial decision in accordance with the law of that State for the purpose of surrender on the basis of the European arrest warrant to another EU Member State.The Court of Justice in Luxembourg, by its recent case-law, held that the notion of issuing judicial authority does not concern the prosecutor's offices in a Member State which are at risk of being subjected, directly or indirectly, to individual orders or instructions by the executive power in the context of adopting a decision on the issuing of the European arrest warrant. The effects of this judgment are mandatory for all Member States and require clarification from the Member States affected by the ECJ ruling regarding the nature of the European arrest warrant authority, even a possible intervention by the legislature in these EU Member States, to facilitate the settlement of cases of arrest in full agreement with the principles of mutual recognition and mutual trust of judgments in the European area.

THE FUTURE OF EUROPEAN ARREST WARRANT IN LIGHT OF DECISION THE EUROPEAN COURT OF JUSTICE IN THE CASE ARANYOSI AND CALDARARU

For a long time, extradition has been a dominant form of international mutual legal assistance, but in many cases it has proven to be an insufficiently efficient instrument. Having that in mind, on the territory of the European Union, a European arrest warrant has been established as an institute that should contribute to the effectiveness of combating modern crime and facilitate the surrender of persons between member states in order to effectively prevent the escape of suspects or convicted persons. Regarding this, the Article will first give a brief overview of the Council of the European Union Framework Decision, which regulates the European arrest warrant, and will analyze it in order to define the strengths and weaknesses of the task itself. The subject of research in this article is primarily devoted to the analysis of the judgment of the European Court of Justice in the “Aranyosi and Caldararu” case. With this verdict, the European Court of Justice, derogates some of the key principles that order is based on and special attention is devoted to the devaluation of the principles of mutual trust and the principles of mutual recognition of judicial decisions among EU states, which the Council of the European Union considers as the cornerstone of judicial cooperation.

European arrest warrants and the independence of the issuing judicial authority – How much independence is required? (Case note on joined cases C-508/18 and C-82/19 PPU OG and PI)

This case note examines the Court of Justice of the European Union (CJEU)’s decision in OG (C-508/18) and PI (C-82/19 PPU) concerning the interpretation of the notion of ‘issuing judicial authority’ within the meaning of Article 6(1) Framework Decision 2002/584/JHA. It assesses whether the German Public Prosecutor’s Office can be considered to be sufficiently independent to issue European Arrest Warrants. In this context, the CJEU’s previous case law on Article 6(1) will be taken into consideration and briefly outlined. The case note, then, summarises the Opinion of the Advocate General and the Court’s line of reasoning and closes with a commentary on the decision.

Framework Decision 2008/909/JHA on the transfer of prisoners in the EU: Advances and challenges in light of the Italian experience

The article addresses the implementation of Framework Decision 2008/909/JHA on the transfer of prisoners in the European Union (EU) and discusses its advances and shortcomings from a twofold perspective: the general features and objectives underpinning the Framework Decision and how these theoretical premises have been put into practice by domestic authorities. First, the article discusses the state of the art of the implementation of this mechanism in Italy and provides relevant data. Second, it addresses the main strategies enacted in Italy by the judiciary, the legislature and the executive power to maximise the impact of the national implementing laws. The analysis demonstrates that these efforts are mainly intended to dispose of unwanted EU citizens and to cope with prison overcrowding, thereby marking a clear departure from the rationale of the Framework Decision. Third, the article focuses on the recurring challenges regarding horizontal cooperation between domestic judicial authorities, with a specific focus on the division of competences between the issuing and the executing authorities in light of the EU and the Italian case law. The article supports the view that the Italian case study can represent a test bed for future quantitative and qualitative improvements in the implementation of this Framework Decision at the EU level.

Treatment decisions in advanced prostate cancer. Organizational factors affecting patient involvement

Background, Aims and Objectives: Many healthcare systems have undergone organizational or structural changes to improve productivity and efficiency. Simultaneously, political requirements are urging both standardized pathways in cancer treatment, person-centered care and shared decision-making. These changes and requirements have created changed conditions for patient involvement. Methods: In this article, we explore how and in which organizational framework decisions were made concerning the treatment of men with advanced prostate cancer. Moreover, we explored how health professionals and patients perceive the influence of the organizational framework on the decision-making process. Additionally, participant observations of patient consultations and the environment in an outpatient clinic, as well as qualitative interviews with patients and health professionals, were conducted. Results and Discussion: The findings revealed that tight schedules, short consultations, and the lack of continuity in a patient’s treatment, caused poor conditions for sufficient dialogue between patients and health professionals and, thus, poor conditions for patient involvement.

¿Cuáles son las resoluciones de «libertad vigilada» a efectos del reconocimiento mutuo? Sobre las dificultades de trasposición de la Decisión Marco 2008/947/JAI al derecho español

This article analyses the transposition into Spanish law of Council Framework Decision 2008/947/JHA of 27 November 2008, on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions. The problems created by the lack of adaptation of the terms to the domestic law make it difficult to determine which sanctions and measures are eligible for mutual recognition, one of the factors contributing to the very low level of implementation observed in practice. With the aim of facilitating the enforcement of the sentence in the country of origin for the large number of potential beneficiaries (foreign convicted persons of EU nationality) of the mutual recognition of these measures in our country, these probation decisions need to be accurately identified, with detailed analysis of both the Framework Decision and the Spanish Law 23/2014, as well as the Government’s position regarding the transposition.

Learning from failure: cross-border confiscation in the EU

PurposeThe purpose of this paper is to critically examine the strengths and weaknesses of a new European Union (EU) initiative attempting an interesting paradigm shift in the field of cross-border asset freezing and confiscation. The entry into force of the Lisbon Treaty and lessons learned from the manifest failure of past EU initiatives (Framework Decisions 2003/577/JHA and 2006/783/JHA) have allowed for such a paradigm shift for the strengthening of mutual recognition of freezing and confiscation orders in the EU.Design/methodology/approachThis paper draws on reports, legal scholarship and other open source data to examine a legislative innovation for the mutual recognition of freezing and confiscation orders in the EU.FindingsThe EU legislative initiative that will be examined is innovative in nature and goes beyond international norms on cross-border asset freezing and confiscation. The new initiative needs to be integrated into the broader EU framework that targets criminal proceeds, and at the same time, to be anchored to respect for human rights.Originality/valueThis study examines the strengths and weaknesses of an important new EU initiative, its compatibility with human rights standards and its relationship to international standards of cross-border asset freezing and confiscation.