Recognition In Criminal Matters Research Articles

Autonomous concepts, diversity management and mutual trust in Europe’s area of criminal justice

The article maps the evolution of autonomous concepts in EU criminal law, particularly in the field of procedural law related to mutual recognition in criminal matters. It gives a taxonomy of autonomous concepts, ranging from the outcome of execution (notably detention), to the procedural parameters of grounds for refusal (related to the definition of trials in absentia), and concepts underpinning the very system of mutual recognition in criminal matters (the definition of judicial authority for issuing national and European arrest warrants). A further category includes the concepts linked with the effective enforcement of procedural rights within and beyond the system of mutual recognition. The article assesses the role of autonomous concepts in managing legal diversity in Europe’s area of criminal justice. Key questions include the extent to which the development of autonomous concepts in European criminal law leads to legal certainty; the extent and limits of the harmonizing effect of autonomous concepts; and the different functions of autonomous concepts in mutual recognition and in harmonization legal instruments.

Borderless enforcement of freezing and confiscation orders in the EU: the first regulation on mutual recognition in criminal matters

This article analyses the main novelties introduced by Regulation (EU) 2018/1805 in cross-border asset recovery. The new instrument, to overcome the shortcomings of the previous regime, has a very broad (though not so clear) scope of application, streamlines the procedures for mutual recognition and execution of freezing and confiscation orders, while at the same time paying increased attention to the procedural safeguards of affected persons and the rights of victims. The article will therefore discuss and critically assess these aspects, both in terms of effectiveness of cooperation and respect for fundamental rights.

O modelo europeu de cooperação judiciária em matéria penal: em busca de uma efetividade baseada em confiança merecida

O modelo europeu de cooperação judiciária internacional em matéria penal, baseado em um elevado nível de confiança mútua presumida entre os Estados-Membros e no consequente princípio do reconhecimento mútuo, pretende ir além dos modelos tradicionais de cooperação, permitindo simplicidade e rapidez em uma perspectiva de “não se fazem perguntas”. O mandado de detenção europeu é emblemático dessa abordagem. No entanto, o funcionamento desse mecanismo não tem sido uma tarefa simples ou descomplicada, especialmente em relação à interação entre o reconhecimento mútuo e os direitos fundamentais. Este artigo analisa a evolução de tal interação e como os direitos fundamentais podem atuar como limites ou facilitadores do reconhecimento mútuo. Pretende-se demonstrar como os direitos e garantias individuais limitam o reconhecimento automático e a pura eficácia e, inversamente, como a harmonização dos direitos de defesa na UE pode fornecer uma base adequada para reforçar a confiança mútua e facilitar assim o reconhecimento mútuo em matéria penal. Em conclusão, será sustentado que a legislação da UE pode alcançar uma cooperação judiciária efetiva em matéria penal, passando de confiança “cega” para confiança conquistada no âmbito da justiça penal europeia.

CJEU case law on double criminality. The Grundza-Piotrowski paradox?

The implementation of the requirement of double criminality in the European Arrest Warrant Framework Decision is one of the fields where the strength of the principle of mutual recognition in criminal matters is put to the test.

Storming the Bastille: Detention conditions, the right to liberty and the case for approximation in EU law

In recent years, detention conditions in the EU have come in the spotlight as an issue of extreme relevance. Concerns about appalling standards of living in places of deprivation of liberty have emerged transversally in the area of freedom, security and justice (AFSJ). The risk that poor detention conditions result in inhumane or degrading treatment – prohibited by Article 4 of the EU Charter of Fundamental Rights (CFREU) – has served to limit the operation of secondary EU law. This has occurred in the framework of forced movement of persons as between Member States, and has mainly called into question the level of protection ensured in the State where the person will be transferred. This may hold true for both asylum law and mutual recognition in criminal matters. While the broader debate on detention conditions has hitherto focused on Article 4, the impact on the right to liberty under Article 6 CFREU has been underexplored. This paper submits that detention conditions must be studied from the perspective of the right to liberty, and makes the case for approximation of detention conditions at EU law level.

Mutual recognition in criminal matters, deprivation of liberty and the principle of proportionality

This paper argues that the application of mutual recognition to judicial cooperation in criminal matters within the European Union (EU) imposes a redefinition of the right to liberty to adjust the latter to the peculiarities of the Union legal order. The article emphasizes the important role that the principle of proportionality in EU law can have for improving the protection of the right to liberty. The two main scenarios of this research are analysed against the different understandings of proportionality: on the one hand, the European Arrest Warrant Framework Decision and the interpretation of the EU Court of Justice; on the other, the three Framework Decisions on transfer of prisoners, probation measures and pre trial measures alternative to detention. The conclusions reveal that, despite the increasing attention paid to proportionality in relation to the right to liberty in mutual recognition, the potential offered by EU law to better protect the right to liberty is still underexploited.

The Right to Liberty in European Union Law and Mutual Recognition in Criminal Matters

AbstractThis article analyses the interaction between the application of mutual recognition in criminal matters and the right to liberty. The main argument is that the current content of the right to liberty in EU law is unsuitable for mutual recognition procedures. As for the structure of this article, firstly, the main features of mutual recognition as a method of inter-state cooperation in criminal matters are outlined. Secondly, the approach of the European Union (especially the Court of Justice) to the right to liberty is clarified. Thirdly, four mutual recognition instruments are analysed in light of the right to liberty: namely, the Framework Decisions on the European Arrest Warrant; the Transfer of Prisoners; the Probation Measures; and the European Supervision Order (ESO). The assessment confirms that the higher level of automaticity in judicial cooperation introduced by mutual recognition requires a rethink of the existing understanding of the right to liberty in EU law.

The Symbiotic Relationship between Mutual Trust and Fundamental Rights in Europe's Area of Criminal Justice

The entry into force of the Treaty of Lisbon has brought questions of the compatibility of aspects of EU criminal law – and in particular the application of the principle of mutual recognition in criminal matters – with fundamental rights. The constitutionalisation of the EU Charter of Fundamental Rights has added urgency to these questions. At the heart of the debate lies the question of the relationship between mutual trust and the protection of fundamental rights in Europe's area of criminal justice. This article will examine the evolving and symbiotic relationship between the protection of fundamental rights and mutual trust before and after Lisbon. It will examine four different types of relationship between fundamental rights and mutual trust: fundamental rights as the outcome of trust (by examining the evolution of ne bis in idem from a principle to a fundamental right); fundamental rights as a limit to trust (by focusing on fundamental rights as grounds for refusal to recognise and execute judicial decisions, and in particular European Arrest Warrants); fundamental rights as the source of trust (by focusing on legislating for human rights at EU level via the adoption of minimum standards on procedural rights in criminal proceedings); and fundamental rights as a source of trust via the development of uniform, autonomous concepts. The article will conclude by reiterating the importance of ensuring effective and on the ground protection of fundamental rights as a cornerstone of establishing a system of mutual recognition based on earned, rather than presumed, trust.

Mutual Recognition Instruments and the Role of the Cjeu: The Grounds for Non-Execution

The paper discusses in what way the full jurisdiction in criminal justice cooperation matters – since 1 December 2014 – will affect the work of the ECJ in the field of judicial cooperation in criminal matters. Moreover in the light of the ECJ's recent case law on the European Arrest Warrant the paper analyses how the principle of mutual recognition in criminal matters is being implemented and whether this progress has been at the expense of lowering the level of protection of fundamental rights in criminal proceedings. Such analysis will help to identify what has been the role of the ECJ in the realm of judicial cooperation in criminal matters and what its future role should be: overstressing assumed mutual trust, without strengthening the fundamental rights perspective, may end up in general distrust.

Mutual Recognition in Criminal Matters and the Principle of Proportionality: Effective Proportionality or Proportionate Effectiveness?

The principle of proportionality constitutes a general principle of EU law. However, its application with regard to judicial cooperation in criminal matters between the EU Member States has remained somewhat unclear, especially after the introduction of the principle of mutual recognition. This article first of all analyses the content and structure of said principle, as it can arguably be given different understandings. Secondly, it discusses the relevance ascribed to the principle in both EU and State legislation and practice.

Interstate Conflict and Cooperation in Criminal Cases: An American Perspective

EuCLR European Criminal Law Review , Seite 114 - 146

The Principle of Mutual Recognition in Criminal Matters: a New Model of Judicial Cooperation Within the European Union

The construction of a European criminal area crystallises all the tensions of a repression which is taking place at an international level. The objectives of the Area of freedom, security and justice in judicial matters rely entirely on an outstanding principle, the principle of mutual recognition of judicial decisions. Imported from the internal market, the principle of mutual recognition is to achieve free movement of criminal decisions within the European Union. This dynamic, asserted in 1999, dawns in an a priori hostile field, and any technical definition of neither the principle of mutual recognition, nor the procedural mechanism are provided. This study aims to establish in legal terms the contents and the outline of the principle of mutual recognition in criminal matters, first by determining a legal definition of the principle in criminal matters and then a procedure for its implementation. Mutual recognition shall be viewed both as a new legal principle and, in a broader sense, a new system of European criminal cooperation

Mutual recognition in criminal matters in Cyprus

Consideration of the hierarchy of laws and principle of mutual recognition operating in relation to criminal matters in Cyprus. The article is written by Theodora Christou (European Cross Border Justice Project Manager, the AIRE Centre), Eleni Kouzoupi (Counsel of the Republic, Law Office of the Republic of Cyprus) and Helen Xanthaki (Senior Lecturer + Academic Director, Sir William Dale Centre for Legislative Studies, IALS). Article first published in Amicus Curiae - Journal of the Society for Advanced Legal Studies. The Journal is produced by the Society for Advanced Legal Studies at the Institute of Advanced Legal Studies, University of London.

The constitutional implications of mutual recognition in criminal matters in the EU

Application of the principle of mutual recognition has been the motor of European integration in criminal matters in the recent past. The adoption in 2002 of the European Arrest Warrant constituted a spectacular development for European Union criminal law, and was followed by a series of further mutual recognition measures. The emphasis on mutual recognition is likely to continue – like its Tampere predecessor, the Hague Programme setting the agenda for EU Justice and Home Affairs until 2009 refers to mutual recognition as “the cornerstone” of judicial co-operation in criminal matters. However, the application of the principle in practice has not been devoid of complications and objections. The implementation of the European Arrest Warrant, and its interpretation by national constitutional courts, have cast light on a series of significant challenges that mutual recognition in criminal matters may pose to the constitutional traditions of Member States and fundamental rights and have caused the debate on primacy of European Union law over national constitutional law to resurface. At the same time, accompanying measures proposed or taken by the European Union in order to alleviate constitutional concerns caused by mutual recognition (such as the Commission’s proposal on minimum standards on defence rights across the EU) may also have significant constitutional implications for the European Union, bringing to the fore issues of competence and legitimacy, and the reframing of the relationship between the Union and Member States in the field of criminal law. This paper will explore these challenges, by focusing on the application of mutual recognition in criminal matters and the specific measures adopted, its implementation and interpretation by national constitutional courts, and the accompanying measures put forward at EU level to address constitutional concerns.

Shooting from the Hip: Proposed Minimum Rights in Criminal Proceedings throughout the EU

Abstract: EU action in the field of procedural rights in criminal proceedings was expected. The effects on procedural rights of the EU‐propelled increase of repressive, cross‐border efficiency with the application of the principle of mutual recognition could not fail to be noticed, and doctrinal opinion has been outspokenly critical of the current predominance of the ‘security’‐element over the other two in the ‘area of freedom, security and justice’. Unfortunately, the proposed Framework Decision on certain procedural rights in criminal proceedings throughout the EU is a double failure: first, the Commission's methodological choices betray a cavalier attitude to the limits of EU competence in this area. Second, it is also a substantive failure in that the rights selected as being ‘so fundamental that they should be given priority at this stage’ do little to solve the problems actually besetting the application of the principle of mutual recognition in criminal matters.

Eu Responses to Terrorism

Following the last update in this Quarterly,1 the European Union (EU) has been quite active in agreeing new measures relating to cross-border policing and criminal law. First of all, the Tampere European Council meeting in October 1999 agreed a list of measures to be adopted to develop the EU's ‘Area of Freedom, Security and Justice’, particularly as regards criminal procedure. Here the European Council requested the Council to agree a work programme on mutual recognition in criminal matters within a year, and to establish an EU organisation facilitating cross-border prosecutions (Eurojust) within 2 years. Following agreement in the meantime on a Convention on Mutual Assistance in Criminal Matters after 5 years’ negotiations,2 the work programme was duly adopted in November 2000, setting out a list of twenty-four measures which the Council should agree in the medium-term to facilitate cross-border investigations, prosecutions, and enforcement of judgments.3 Several Member States then began to implement this plan, tabling two versions of a proposed Decision to set up Eurojust and also making proposals for ‘Framework Decisions’ to harmonise national laws as regards enforcement of other Member States’ orders to freeze assets and evidence and enforcement of judgments imposing financial penalties.4